                                             OPINION
                                      No. 04-07-00072-CR

                                       Murray HAMMER,
                                           Appellant

                                                v.

                                      The STATE of Texas,
                                            Appellee

                   From the 218th Judicial District Court, Wilson County, Texas
                               Trial Court No. 06-03-00078-CRW
                           Honorable Donna S. Rayes, Judge Presiding

Opinion by:      Rebecca Simmons, Justice

Sitting:         Karen Angelini, Justice
                 Rebecca Simmons, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: January 27, 2010

REVERSED AND REMANDED

           This appeal is on remand from the Texas Court of Criminal Appeals. Hammer was

convicted by a jury of two counts of indecency with a child. After thoroughly considering the

issue on remand, we conclude the trial court committed harmful error in excluding some of the

evidence Hammer offered to demonstrate the complainant’s motive to falsely accuse him of

molestation. Accordingly, we reverse the trial court’s judgment and remand the case for a new

trial.
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                                     FACTUAL BACKGROUND

         The facts giving rise to this appeal are well-detailed in the prior opinions. See Hammer,

256 S.W.3d 391, 392 (Tex. App.—San Antonio 2008), rev’d, 296 S.W.3d 555, 558-561 (Tex.

Crim. App. 2009). To briefly summarize, fifteen year old P.H. went to live with her father,

Appellant Murray Hammer, during the summer of 2005. P.H. woke up one night to find that her

pants and underwear were gone. Hammer was standing over her. P.H. got up, put her pants

back on, and then went to sleep in another bed. P.H. said that she woke up a second time to find

Hammer in the bed, “kind of spooning me and he had his hands on my crotch.” She got up and

moved back to the couch. The next morning, P.H. “told him that I know what happened and he

told me that he didn’t remember and that he was drunk and he told me he was really sorry.” She

did not tell anyone about the molestation because she knew that Hammer had been drinking.

P.H. said that, about two weeks later, she was sleeping in her grandmother’s bed with her clothes

on. She woke up to find Hammer behind her with his hands down the front of her pants, rubbing

her vagina. When he saw that P.H. was awake, he jumped up and left the room.

         During trial, Hammer’s counsel attempted to introduce evidence that P.H. had previously

falsely accused other persons of unwanted sexual contact. Relying on Texas Rule of Evidence

608(b), the trial court determined the prejudicial effect of the evidence outweighed its probative

value and excluded the evidence. Hammer’s counsel made a bill of exception with regard to the

following evidence excluded by the trial court:

   (1)      journals in the possession of child protective services allegedly containing
            numerous rape allegations;
   (2)      testimony by Shonna Makuta that P.H. accused a third party of rape to cover
            up her sexual encounters with a boyfriend;
   (3)      testimony by Shonna Makuta that P.H. accused other persons of molesting
            her;
   (4)      testimony by Patricia Mossmeyer that P.H. asserted “every one of her
            mother’s boyfriends molested her;”

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    (5)       testimony by Patricia Mossmeyer that P.H. and Mossmeyer’s granddaughter
              were held by five men, with knives to their throats and that they were raped;
              and
    (6)       allegations that P.H. lied about skipping school.

                                       PROCEDURAL BACKGROUND

          Hammer argued the trial court erred in refusing to allow him to cross-examine the

complainant regarding false allegations she made against other individuals. On appeal, this court

affirmed the trial court’s ruling. Hammer, 256 S.W.3d at 396, rev’d, 296 S.W.3d 555. Hammer

filed a petition for discretionary review asserting the trial court erred in excluding evidence that

P.H. had previously made a false accusation of “rape.” The Court of Criminal Appeals agreed

and stated:

          In sum, we hold that the trial judge abused her discretion in preventing appellant
          from cross-examining P.H. about the hospital incident, her allegations that “all of
          her mother’s boyfriends had sexually molested her,” the incident about being held
          at knife point by five men, and her statements to Shonna concerning the purported
          sexual assault by Ignacio Talamendez to demonstrate her bias against appellant
          and her possible motive to testify falsely against him.

Hammer, 296 S.W.3d at 570. 1 The Court reversed our judgment and remanded the case to this

court for a harm analysis.

                                               HARM ANALYSIS

          Because the court erred in preventing appellant from cross-examining P.H., we must

determine whether the error was harmless. See Hammer, 296 S.W.3d at 570; TEX. R. APP. P.

44.2(b). Here the erroneous admission constituted a non-constitutional error. See Hammer, 296

S.W.3d at 570 (instructing a review “to address this issue under Rule 44.2(b)”). Thus, under

Rule 44.2(b), we disregard the error if no substantial right has been affected. Id. “A substantial



1
  However, the Court of Criminal Appeals affirmed our previous holding that the contents of P.H.’s journal as well
as the evidence that P.H. was found “lying on the ground with her boyfriend” were properly prohibited from being
introduced. See Hammer, 296 S.W.3d at 569.

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right is affected when the error had a substantial and injurious effect or influence in determining

the jury’s verdict.”   King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing

Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

       As stated above, Hammer was entitled to cross-examine P.H. about the false reports she

previously made about various sexual encounters in order to show P.H.’s “bias against

[Hammer] and to show her purported motive in falsely accusing him.” See Hammer, 296

S.W.3d at 567. The trial court impeded the jury’s duty to weigh P.H.’s credibility by preventing

Hammer from both cross-examining P.H. and from admitting evidence which would have shown

“P.H.’s animus toward [Hammer] and her desire to get out of his house.” Id. at 569. The

disallowed evidence “demonstrates that P.H. was not above changing her story of a consensual

sexual encounter with her boyfriend into a nonconsensual one with someone else to prevent her

father from learning the truth and presumably punishing her for running away and having sex

with [her boyfriend].” Id. at 566.

       These errors by the trial court had an injurious effect on the jury’s verdict because this is

a case involving “he said, she said” that “must be resolved solely on the basis of the testimony of

[P.H.] and [Hammer].” Id. at 568. Because Hammer was not permitted to cross-examine P.H.

regarding her previous false accusations, he was unable to present any evidence of P.H.’s

purported motive to fabricate allegations of sexual molestation. We conclude that the inability to

fully present his defense affected a substantial right and was, therefore, harmful error. See TEX.

R. APP. P. 44.2(b).




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                                            CONCLUSION

       Thus, we reverse the judgment of the trial court and remand the case for further

proceedings consistent with this opinion.


                                                 Rebecca Simmons, Justice

PUBLISH




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