                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00253-CR


JOE DALE JOHNSON                                                     APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


                                     ----------

         FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
                     TRIAL COURT NO. 48,790-C

                                     ----------

     DISSENTING OPINION ON EN BANC RECONSIDERATION

                                         ----------

      Respectfully, I cannot join the majority in the conclusion that Appellant was

not entitled to offer evidence that the complainant had been sexually abusing his

younger sister for several years. Appellant’s entire defense was an attempt to

show that the State was creating the false impression that the complainant was a

victim, a child who was emotionally distraught over being victimized and

sufficiently innocent to be embarrassed to discuss it. The State wanted to create
the impression with the jury that the complainant was truthful; Appellant wanted

to show the jury that the complainant was a liar. Appellant’s position throughout

the trial, which he has maintained on appeal, was that the State created the false

impression that the complainant was innocent in sexual matters.

      The complainant was a twelve-year-old boy who was participating in court-

ordered counseling for sexually molesting his ten-year-old sister over several

years. At trial, Appellant sought to elicit testimony that the complainant had been

adjudicated delinquent for sexually molesting his ten-year-old sister and, among

other things, was in court-ordered counseling as a result. On appeal, Appellant

argues that the excluded evidence (1) was admissible to rebut the false

impression the State had left with the jury regarding the primary reason the

complainant was in counseling, thereby opening the door for the sexual abuse

evidence; (2) impeached the complainant’s testimony that his guilt in being the

victim of sexual abuse was relieved when he made his outcry; and (3) supported

the defense’s theory that the complainant had fabricated the abuse allegations

against Appellant to get attention and sympathy for himself. In the trial court,

Appellant offered the evidence on the basis that under the Sixth Amendment,

cross-examination is the fundamental right of a defendant, affecting due process.

He argued that the evidence showed the complainant’s mental state at the time

he made the outcry and what he was in counseling for. Appellant also argued

that the complainant’s past sexual behavior could be motive or bias for making




                                        2
the outcry, not only for deception, but to get attention, and that the evidence was

admissible to show the complainant’s knowledge of sexual matters.

      In his first issue, Appellant contends that the trial court erred by excluding

evidence that the complainant had sexually assaulted his younger sister and that

the trial court thereby violated Appellant’s rights under the Sixth Amendment and

Due Process Clause and rules of evidence 404(B) and 412. Appellant argues

that “[t]he evidence that the alleged victim had sexually molested his little sister

was admissible because the State left a false impression with the jury during its

direct exam of the alleged victim and because it was admissible to show his

mental status at the time of his alleged outcry.”

      During voir dire, the State appropriately inquired about veniremembers’

training in dealing with sexual abuse. That inquiry developed into a discussion of

children’s varying behaviors in response to having been sexually abused,

including their reluctance to admit it or to talk about it.       The State asked

veniremember Glasgow, a teacher, what kind of evidence she might expect to

see in a child sexual abuse case. Glasgow responded that direct evidence might

not be available but that evidence might be adduced through counseling. The

prosecutor continued to discuss the subject with Glasgow, suggesting that the

perpetrator might make sure there were no eyewitnesses and suggesting that

there might or might not be DNA evidence, video, or a confession.

      Veniremember Taylor said that she had spent eleven years working

primarily in the children’s psychiatric units of two hospitals.    The prosecutor


                                         3
asked her to go into detail about her experiences in the children’s psychiatric

units and to explain how children might react to their abuse. Next, he asked

veniremember Humphrey, who also had extensive experience working with

youngsters in the mental health field, to compare his experiences with Taylor’s.

      Veniremember Lerew had a master’s degree in counseling and worked

with children and adolescents.       The prosecutor asked her to explain the

behaviors she encountered “after children have been victimized.”

      The prosecutor also engaged in extensive discussion of intrafamilial sexual

abuse, issues of the child’s credibility, and the effect of the abuse on the child.

Again, the subjects of counseling and a victimized child’s difficulty in discussing

his or her abuse were introduced during the State’s voir dire.

      In a pretrial hearing, the trial judge announced that he had reviewed the

complainant’s juvenile file. He noted that the complainant had been placed on

deferred adjudication probation.     The trial judge referred to it as “another

probationary disposition” and quoted from the documents before him:

             The Court defers its decision on registration requirement until
      juvenile has completed an approved sex offender treatment as a
      condition of probation or commitment to the Texas Youth
      Commission. The Court retains jurisdiction to require or to excuse
      registration at any time during the treatment program or on
      successful or unsuccessful completion.

      That particular order was entered July 18, 2008. The trial judge said that

he would not allow the defense to “get into those matters” because “the outcry




                                         4
was made well before the allegation of charges against the juvenile in a totally

unrelated matter.”

      In his opening statement, the prosecutor asked the jury to “do [their] best

to look at this through the—the lens of a 12, 13-year-old boy.”            And the

prosecutor also asked them to look through the lens of a fifty-year-old pervert.

Appellant, in his opening statement, responded,

      You’re going to see that this witness, this 13, almost 14-year-old
      witness, is not your regular, normal 13, almost 14-year-old boy. And
      the D.A. is going to want y’all to base y’all’s decision on this witness
      and potentially send my client to prison for the rest of his life.

      The State called the complainant’s father, R.H., as its first witness. The

State touched on R.H.’s knowledge of the complainant’s having “looked at

pornography.”    The defense, on cross-examination, brought out that the

complainant had a habit of watching pornography, but, at the same time, R.H.

said that he had caught the complainant watching pornography only once and

that he did not think the complainant had a problem with pornography. According

to his father, the complainant had viewed pornography at least since he was ten

years old. R.H. testified that the complainant was being bullied at school, was

suffering from depression, had a stressful relationship with his parents, and had

been caught shoplifting. R.H. testified that those problems and the pornography

issue were the reasons that he and his wife had placed the complainant in

counseling, although, when asked if the complainant was in counseling before




                                         5
April 2007, R.H. testified that he could not remember when counseling began.

The following exchange occurred before the jury on cross-examination:

       Q.    Okay. And so he—you would agree with me that during the
             fall of 2007, including November of ‘07—November of 2007,
             he was dealing with a lot of issues, correct?

       A.    There were issues, yes.

       Q.    And he was having emotional difficulties, correct?

       A.    Yes.

       Despite the trial court’s pretrial conclusion that the complainant’s outcry

was made long before his sister’s allegations of sexual misconduct against him,

the complainant testified outside the presence of the jury that he had sexually

abused his younger sister both before and after Appellant’s sexual assaults on

him.   The complainant also testified that his parents put him in counseling

because he was sexually abusing his sister and that they did not know of

Appellant’s alleged sexual offenses against the complainant when the counseling

began: “They did not know about sexual abuse with [Appellant], but they knew

about sexual abuse of my sister. They had guessed what was happening and

they wanted it to stop. . . . And they were trying to find out through the counselor

if I had or not.” There was also evidence that the complainant received court-

ordered counseling as a result of his sexual abuse of his younger sister over

several years.      Sexual abuse of his sister was one of the things that the

complainant was struggling with in November 2007 and that contributed to his

emotional difficulties.


                                         6
      Outside the presence of the jury, the complainant testified to the sexual

abuse of his sister, but in the jury’s presence, he testified that Appellant had

sexually abused him.     He also testified about his use of pornography and

stealing. He said that he had watched pornography for a long time. But the

complainant also testified that he had gone four months without watching

pornography until Appellant influenced him to start watching pornography again.

The complainant further testified that he was angry at Appellant because

Appellant had let him play with a Nintendo DS that had been donated to the

church but then took the DS away from him. Then the complainant testified,

      Q.    At some point you made the decision to tell someone about
            the sexual acts [by Appellant against the complainant]?

      A.    Yes.

      Q.    Why did you decide to do that?

      A.    Because after the DS wasn’t allowed to come to the teen
            group, I was at first pretty angry that I didn’t get the DS like I
            wanted, but then I got to thinking about it and then I thanked
            Jimmy for not letting us have it. That was the teen leader that
            didn’t allow it to come through. And I told him that I was
            thankful for it[,] and he said that—why are you glad that that
            didn’t happen? I said, well, let’s just say I can’t tell you. And
            he said, well, that sounds a lot like something that happened
            to me.

      Q.    And then—and then did you tell him what happened to you?

      A.    Yes.

      Q.    Did you tell him everything?

      A.    Yes.

      Q.    How did you feel when you told him?


                                         7
      A.    I felt better, like a weight off my shoulders . . . .

      The State argues that the rules of evidence and the family code prevented

impeachment by a juvenile adjudication and that the evidence was not relevant to

Appellant’s theory of fabrication. But the Texas Court of Criminal Appeals has

set out a hierarchy for situations in which there is a conflict between the caselaw

and its rules. Rule of evidence 101(c) states that in criminal cases,

      [h]ierarchical governance shall be in the following order: the
      Constitution of the United States, those federal statutes that control
      states under the supremacy clause, the Constitution of Texas, the
      Code of Criminal Procedure and the Penal Code, civil statutes, these
      rules, and the common law. Where possible, inconsistency is to be
      removed by reasonable construction. 1

      The Texas Court of Criminal Appeals addressed the appropriate balancing

of interests between rule of evidence 403 and a defendant’s right to confront and

cross-examine his accuser and to present his defense in a sexual assault case in

Hammer v. State:

             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
      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 credibility of either the defendant or complainant in such
      “he said, she said” cases. And Texas law, as well as the federal
      constitution, requires great latitude when the evidence deals with a

      1
       Tex. R. Evid. 101(c).



                                           8
      witness’s specific bias, motive, or interest to testify in a particular
      fashion. 2

The Hammer court concluded that “the constitution is offended if the state

evidentiary rule would prohibit [a defendant] from cross-examining a witness

concerning possible motives, bias, and prejudice to such an extent that he could

not present a vital defensive theory.” 3

      Similarly, rule of evidence 609(d) states,

      Evidence of juvenile adjudications is not admissible . . . under this
      rule unless required to be admitted by the Constitution of the United
      States or Texas. 4

That is, while rule 609(d) explicitly prevents the use of evidence of juvenile

adjudications, that same rule likewise explicitly bows to the supremacy of the

federal and state constitutions. 5         When an appellant can show a logical

connection between a witness’s testimony and evidence of his juvenile record

demonstrating bias and motive, then excluding such evidence violates the

appellant’s rights to confront and cross-examine the witnesses against him. 6


      2
       296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009) (footnotes omitted).
      3
       Id. at 562–63.
      4
       Tex. R. Evid. 609(d) (emphasis added).
      5
      Id.; Irby v. State, 327 S.W.3d 138, 147 (Tex. Crim. App. 2010), cert.
denied, 131 S. Ct. 904 (2011).
      6
       See Davis v. Alaska, 415 U.S. 308, 316–19, 94 S. Ct. 1105, 1110–12
(1974); Irby, 327 S.W.3d at 140.



                                             9
      The majority states that because Appellant elicited R.H.’s testimony

regarding who initiated counseling and why, Appellant was not allowed to

impeach him, despite the complainant’s testimony directly contradicting R.H.

Although the court order placing the complainant in counseling was entered after

the date he began counseling, that does not mean that counseling was not

initiated, at least in part, because the complainant was sexually abusing his

sister, as he himself testified outside the presence of the jury. Was it because

someone was already investigating the abuse of the sister? Was it because the

case against the complainant had already been filed? The complainant himself

testified that his parents “knew about sexual abuse of [his] sister. They had

guessed what was happening and they wanted it to stop. . . . And they were

trying to find out through the counselor if [the complainant] had or not.”

[Emphasis added.] There is a big difference between the complainant’s having

been in counseling because of tensions with his parents, bullying, and

depression and counseling because he had been sexually abusing his sister for

years and his parents wanted it to stop. When Appellant was not allowed to

correct the false impression left by the testimony of the complainant’s father, he

was denied due process.

      In presenting its case and in jury argument in the trial court, the State

repeatedly referred to the reluctance of a boy the complainant’s age to admit to

the sexual acts that he claimed Appellant committed against him, essentially

natural shyness to speak of sexual matters. Further, the State repeatedly spoke


                                       10
of the grooming that would cause an innocent young man to become the victim of

a sexual predator. The prosecutor began the State’s rebuttal final argument by

reminding the jury that he had told them during opening statement that “this case

is about a deviant man who took sexual advantage of a young boy . . . [,] how

[Appellant] took sexual advantage of [the complainant] for [Appellant’s] own

pleasure and . . . manipulated [the complainant,] . . . and these are the

aftereffects that you’ve heard about this week.” Final argument continued in this

vein until the very end.

      The State left the impression with the jury that the complainant’s emotional

problems, watching pornography, conflict with his parents, and need for

counseling all arose as a result of his victimization by school bullies and by

Appellant, who caused him to participate in sexual activities. This was a false

impression that Appellant was entitled to rebut 7 as part of his fundamental due

process right to confront and cross-examine witnesses against him in challenging

the State’s case. 8


      7
        See Renteria v. State, 206 S.W.3d 689, 697–98 (Tex. Crim. App. 2006)
(holding that exclusion of evidence showing the defendant’s remorse violated
due process by preventing defendant from rebutting the State’s case when the
State left jury with false impression and emphasized it).
      8
       See Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731
(2006) (“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” (quoting Crane v. Kentucky, 476
U.S. 683, 690, 106 S. Ct. 2142, 2146 (1986)) (internal quotations and citations


                                       11
      The United States Supreme Court said in Pointer v. Texas,

            There are few subjects, perhaps, upon which this Court and
      other courts have been more nearly unanimous than in their
      expressions of belief that the right of confrontation and cross-
      examination is an essential and fundamental requirement for the
      kind of fair trial which is this country’s constitutional goal. Indeed, we
      have expressly declared that to deprive an accused of the right to
      cross-examine the witnesses against him is a denial of the
      Fourteenth Amendment’s guarantee of due process of law. 9

      Appellant was entitled to present his defense. As a fundamental right, the

Constitution guarantees criminal defendants a meaningful opportunity to present

a complete defense. The complainant had already been adjudicated delinquent

for sexually assaulting his younger sister. He was not particularly remorseful for

that conduct, and his actions resulted in strained relations with his parents and

the need for counseling. When Appellant tried to inform the jury that the trial

court had ordered counseling as a condition of the complainant’s probation, he

was not allowed to do so. Nor was Appellant allowed to show that the parents

had sought counseling for the complainant because he was sexually abusing his

sister, as the complainant testified outside the jury’s presence, and they wanted


omitted)); see also California v. Trombetta, 467 U.S. 479, 486 n.6, 104 S. Ct.
2528, 2532 n.6 (1984) (“In related cases arising under the Sixth and Fourteenth
Amendments, we have recognized that criminal defendants are entitled to call
witnesses on their own behalf and to cross-examine witnesses who have testified
on the government’s behalf.”) (citations omitted); Holmes v. State, 323 S.W.3d
163, 173 (Tex. Crim. App. 2009) (op. on reh’g) (“[T]he trial court’s ruling
disallowing cross-examination of the State’s expert witness violated the
defendant’s fundamental rights to a fair trial.”).
      9
       380 U.S. 400, 405, 85 S. Ct. 1065, 1068 (1965).



                                         12
the sexual abuse to stop. But the complainant and his father were allowed to

suggest to the jury that the complainant had needed and undergone counseling

solely because he had been victimized by bullies and by Appellant, ignoring the

admitted years of sexual abuse by the complainant against his younger sister

before the alleged sexual abuse by Appellant occurred.

       The complainant was mad at Appellant, and, having been adjudicated

delinquent for sexually assaulting his younger sister, he knew firsthand or should

have known how damning and indefensible an accusation of sexual assault could

be.   Appellant was entitled to correct the misleading characterization of the

complainant that the State had presented to the jury, or, at a minimum, to present

to the jury his version of the story and allow the jury, as the trier of fact, to

determine what the true facts were.           But the trial court impermissibly limited

Appellant’s right to cross-examine both the complainant and other witnesses

against Appellant and to present evidence. Consequently, I would hold that the

trial court abused its discretion by not allowing Appellant to cross-examine the

complainant and other adverse witnesses with evidence of the complainant’s

prior sexual victimization of his little sister.

       Rule of appellate procedure 44.2(a) provides that “[i]f the appellate record

in a criminal case reveals constitutional error that is subject to harmless error

review, the court of appeals must reverse a judgment of conviction or punishment

unless the court determines beyond a reasonable doubt that the error did not




                                             13
contribute to the conviction or punishment.” 10   Appellant was not allowed to

present his defense to the jury in any sense other than argument and innuendo.

He was not allowed to offer substantive evidence to rebut the picture of the

complainant painted by the State and to explain the bases of Appellant’s

assertion that the complainant was not the shy innocent who was devastated by

sexual abuse requiring counseling to repair the emotional damage. No scientific

evidence, no witness, no physical evidence, and no admission otherwise

supported the complainant’s allegations.   It was simply a swearing match.    I

cannot say beyond a reasonable doubt that the error did not contribute to

Appellant’s convictions or punishment on the two remaining counts; I would

therefore hold this error harmful.

      The State’s questioning of the complainant and his father painted an

incomplete and misleading picture of the complainant and the circumstances of

his outcry. By developing the testimony as it did, the State opened the door to

evidence that could have accurately conveyed why the complainant was in

counseling, what motivation he may have had to make up a false accusation

against Appellant, and the degree to which he understood sexual matters and to

which he personally appreciated legal consequences imposed upon sex

offenders.



      10
        Tex. R. App. P. 44.2(a).



                                      14
      It is not my position that this court should signal a green light for Appellant

to explore in detail the complainant’s sexual exploits or for other litigants in

similar cases to explore in detail the sexual history of the complainants in those

cases. It is the fact that, and the manner in which, the State created a false

impression that opened the door to rebut the false picture of the complainant in

this case. The jury, not the judge, was the trier of fact, and the jury was entitled

to hear Appellant’s defense.

      Because they did not, I must respectfully dissent.



                                                    /s/ Lee Ann Dauphinot

                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

MEIER and MCCOY, JJ join.

PUBLISH

DELIVERED: October 9, 2014




                                        15
