                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-379-CR


DESMOND W. BRYAN                                                  APPELLANT

                                        V.

THE STATE OF TEXAS                                                      STATE

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           FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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                                 I. INTRODUCTION

      A jury found Appellant Desmond W. Bryan guilty of one count of

aggravated sexual assault of a child and one count of indecency with a child by

exposure and assessed his punishment at seven years’ confinement and two

years’ confinement, respectively. The trial court sentenced him accordingly,




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           See Tex. R. App. P. 47.4.
ordering that the sentences run concurrently. In two points, Bryan argues that

the trial court erred by excluding certain testimony and by failing to include

conditions of probation in the jury charge. We will affirm.

                   II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      When A.M. was six or seven years old, she lived with her mother D.M.,

her grandfather Bryan, and Bryan’s wife in Bryan’s house. A.M. was home

alone with Bryan one day watching cartoons in the living room when he asked

if she wanted to “see something.” Bryan told A.M. to take off her underwear

and lie down on the couch. He lay down next to her and licked her female

sexual organ. Bryan told A.M. to go into his bedroom and get on the bed.

Bryan got in bed with her and kissed A.M. on her mouth and cheeks. He got

up, went to the restroom, shaved his face, and returned to the bedroom. He

got back in bed with A.M., took off his pants and underwear, and exposed his

penis to A.M. Bryan asked A.M. if she “wanted to,” and A.M. responded, “No.”

Bryan got up and said, “Suit yourself.” He put his pants and underwear back

on and told her that if she told anyone, everyone would be mad at her and she

would be taken away.




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      Several months later, A.M. moved to Scottsdale, Arizona to live with her

father Michael and his girlfriend Tracie. 2 Over a year after the incident with

Bryan, A.M. wrote on a sticky note that she wanted to tell her dad something

very serious. Tracie saw the note first and asked A.M. if she wanted to talk to

her about it. A.M. told her that Bryan had sexually molested her. Tracie woke

up Michael, and Michael and Tracie asked A.M. to explain what had happened.

A.M. felt more comfortable writing it down than saying it; she wrote that her

grandfather had licked her private and had said he enjoyed it.          Michael

contacted the police.

                                 III. E XCLUDED T ESTIMONY

      In his first point, Bryan argues that the trial court erred by excluding

testimony by A.M. that she had been sexually assaulted by a maintenance

worker prior to the incident with Bryan. Bryan argues that the exclusion of this

testimony violated his Sixth Amendment right to confrontation and prevented

him from submitting two defensive theories.

                                 A. Standard of Review

      This court reviews the trial court’s decision to admit evidence under an

abuse of discretion standard. Casey v. State, 215 S.W.3d 870, 879 (Tex.




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           Michael and Tracie married before trial.

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Crim. App. 2007); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991) (op. on reh’g). As long as the trial court’s ruling falls within the

zone of reasonable disagreement, we will affirm its decision. Moses v. State,

105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

                                     B. Rule 412

      Texas Rule of Evidence 412, known as the rape shield law, governs the

admissibility of a complainant’s prior sexual relationships with third parties in

a sexual assault case. See Tex. R. Evid. 412. Rule 412 attempts to limit

abusive, embarrassing, and irrelevant inquiries into a complainant’s private life

and to encourage victims of sexual assault to report those crimes. See Allen

v. State, 700 S.W.2d 924, 929 (Tex. Crim. App. 1985); Wofford v. State, 903

S.W.2d 796, 798 (Tex. App.—Dallas 1995, pet. ref’d).

      Rule 412(b) provides that specific instances of a victim’s past sexual

conduct are inadmissible unless (1) the evidence falls within one of five

categories of evidence listed in rule 412(b)(2) and (2) the trial court finds that

the probative value outweighs the danger of unfair prejudice. See Tex. R. Evid.

412(b). Bryan complains that the testimony at issue was admissible under two

of rule 412(b)’s categories of admissible evidence because it was (1) evidence

that relates to motive or bias of the alleged victim and (2) evidence that is

constitutionally required to be admitted. See Tex. R. Evid. 412(b)(2)(C), (E).

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                               C. Rule 412 Hearing

      During the rule 412 hearing, A.M. testified that sometime before the

incident with her grandfather, she had lived at in apartment complex with her

mother. She said that one day she was in another apartment in the complex

by herself with a maintenance man when she fell down and the man lay on her

back and “humped” her. She explained that he had made “a movement back

and forth,” rubbing his sexual organ on her. They both were fully clothed.

      At the rule 412 hearing, A.M. also testified that she had seen a

pornographic movie once and that, when she was about five years old, she had

walked in on her mother engaging in oral-to-genital contact with her boyfriend.

The trial court allowed the testimony about the pornographic videotape and the

observations of her mother engaging in oral sex, but it excluded the testimony

about the incident with the maintenance man.

                   D. Rule 412 Applicable to A.M.’s testimony

      Bryan first argues that rule 412 was not applicable to A.M.’s testimony

about the incident with the maintenance man because it did not involve

consensual activity. But rule 412 applies to evidence of the victim’s “past

sexual behavior,” and courts have not limited its application to consensual

behavior. See, e.g., Matz v. State, 989 S.W.2d 419, 422–23 (Tex. App.—Fort

Worth 1999) (holding evidence of prior sexual abuse inadmissible under rule

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412), rev’d on other grounds, 14 S.W.3d 746 (Tex. Crim. App. 2000); Marx

v. State, 953 S.W.2d 321, 337 (Tex. App.—Austin 1997) (same), aff’d, 987

S.W.2d 577 (Tex. Crim. App.), cert. denied, 528 U.S. 1034 (1999). Rule 412

applies to A.M.’s testimony about the incident with the maintenance man, and

therefore, that testimony is inadmissible if it does not fit within one of rule

412(b)’s categories of admissible evidence. See Tex. R. Evid. 412(b).

                  E. Evidence Inadmissible to Show Motive or Bias

      Bryan argues that evidence that a maintenance man sexually assaulted

A.M. was admissible to show motive or bias under rule 412(b)(2)(C) and points

to evidence at trial that A.M.’s father Michael had attempted to extort money

from Bryan.3 Bryan argues that the evidence about the prior sexual assault,

“when coupled with evidence of attempted extortion on the part of [Michael],

tended to establish that perhaps some outcry was made to him regarding the

maintenance worker incident and that was utilized by [Michael] in an attempt

to extort money.”

      As the State points out, rule 412(b)(2)(C) applies only to evidence relating

to motive or bias of the alleged victim, not any third party. See Tex. R. Evid.




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        At trial, Bryan’s son Erik and daughter-in-law Gina testified that, after
A.M. told Michael what Bryan had done, Michael had called Gina and had said
that he bet Bryan “would pay any amount of money” for this not to get out.

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412(b)(2)(C). Nothing in the record—including the evidence of a prior assault

on A.M. by a third party—suggests that A.M. was biased or motivated to lie

about Bryan sexually assaulting her.       Consequently, we hold that the

complained-of testimony was not admissible under rule 412(b)(2)(C).

                         F. Evidence Inadmissible to Show
                           Alternative Basis of Knowledge

      Bryan also argues that the complained-of testimony was admissible to

explain how A.M. knew about sexual matters at her young age. He argues that

admission of this evidence was constitutionally required under rule 412(b)(2)(E)

because its exclusion deprived him of his right to cross-examine A.M. on an

alternative source of knowledge.

      As this court has explained, “[a] number of states have held that the

United States Constitution compels the admission of evidence to show an

alternative basis for a child victim’s knowledge of sexual matters.” Hale v.

State, 140 S.W.3d 381, 397 (Tex. App.—Fort Worth 2004, pet. ref’d); Matz,

989 S.W.2d at 423. The right to confront and to cross-examine is not absolute

and may, in appropriate cases, bow to accommodate other legitimate interests

in the criminal trial process. Chambers v. Mississippi, 410 U.S. 284, 295, 93

S. Ct. 1038, 1046 (1973); Allen, 700 S.W.2d at 931 (holding that precursor

to rule 412 was constitutional and did not, on its face, violate the accused’s



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right to confrontation). Moreover, although an accused is guaranteed his right

to confrontation, evidence must be relevant or probative to the issues at trial

to be admissible. See United States v. Nixon, 418 U.S. 683, 711, 94 S. Ct.

3090, 3109 (1974); Lempar v. State, 191 S.W.3d 230, 236 (Tex. App.—San

Antonio 2005, pet. ref’d).

      To establish relevancy of a child’s prior sexual conduct as an alterative

source of sexual knowledge, the appellant must establish that the prior acts

clearly occurred and that the acts were sufficiently similar to the present case

so as to explain the acts in question. See Hale, 140 S.W.3d at 397; Matz, 989

S.W.2d at 423.

      Here, Bryan failed to establish that the prior assault was sufficiently

similar to Bryan’s assault. Evidence that a third party lay down on A.M.’s back

and “humped” her by moving in a back and forth motion while fully clothed is

not sufficiently similar to Bryan’s licking A.M.’s female sexual organ, kissing her

on the cheeks and mouth, and exposing his penis to her.           See Hale, 140

S.W.3d at 397; Matz, 989 S.W.2d at 423. Moreover, Bryan was allowed to

develop his alternative-source-of-knowledge defensive theory when he cross-

examined A.M. about seeing a pornographic video and walking in on her mother

performing oral sex.




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      We cannot conclude that the complained-of testimony was admissible

under rule 412(b)(2)(E) or that the exclusion of this testimony deprived Bryan

of his constitutional right of cross-examination. See Tex. R. Evid. 412(b)(2)(E);

Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (holding no

violation of Confrontation Clause when defendant’s general defensive theory

presented to jury through alternate testimony).

      Having held that the evidence did not satisfy the requirements for

admissibility under the relevant circumstances for admissibility under rule

412(b)(2), we hold that the trial court did not abuse its discretion by excluding

A.M.’s testimony. See Casey, 215 S.W.3d at 879, Montgomery, 810 S.W.2d

at 391. We overrule Bryan’s first point.

                                   IV. J URY C HARGE

      In his second point, Bryan argues that the trial court erred by denying his

request that the jury charge on punishment include the mandatory conditions

of probation required of a person convicted of sexual assault.

      The law statutorily mandates certain probation conditions for sex

offenders, and imposition of these required conditions is not within the trial

court’s discretion. See Tex. Code Crim. Proc. Ann. art. 42.12, § 13(b) (Vernon

Supp. 2009). But, whether requested or not, a trial court is not required to

include in its charge to the jury a list of statutory terms and conditions a

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defendant would face if the jury recommended probation. Cagle v. State, 23

S.W.3d 590, 594–95 (Tex. App.—Fort Worth 2000, pet. ref’d) (citing

Yarbrough v. State, 742 S.W.2d 62, 64 (Tex. App.—Dallas 1987), pet. dism’d,

improvidently granted, 779 S.W.2d 844, 845 (Tex. Crim. App. 1989)); see also

Flores v. State, 513 S.W.2d 66, 69 (Tex. Crim. App. 1974) (“While it is

considered good practice to enumerate in the court’s charge the probationary

conditions which the court may impose if probation is recommended by the

jury, the failure to so enumerate the said conditions is not harmful . . . .”). 4

      Because, under applicable law, the trial court was not required to include

conditions of probation in the jury charge on punishment, we overrule Bryan’s

second point. See Cagle, 23 S.W.3d at 594–95.




      4
         Bryan argues that the court of criminal appeals’s decision in Ellis v.
State, 723 S.W2d 671, 672 (Tex. Crim. App. 1986), supports his position. But
in Yarbrough, the court of criminal appeals approved of the Dallas court’s
holding that a trial court’s refusal to include all of the statutory conditions of
community supervision in a jury charge was not reversible error. 779 S.W.2d
at 845. Thus, to the extent that Ellis stands for the proposition that trial courts
must include statutory terms of probation in the jury charge, it has since been
implicitly overruled. See id.; Murdock v. State, 840 S.W.2d 558, 570 (Tex.
App.—Texarkana 1992), vacated on other grounds, 845 S.W.2d 915 (Tex.
Crim. App. 1993).

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                                  V. C ONCLUSION

     Having overruled Bryan’s two points, we affirm the trial court’s judgment.




                                                SUE WALKER
                                                JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 25, 2010




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