
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-97-00415-CR





Heath Lane Stephens, Appellant


v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 51ST JUDICIAL DISTRICT

NO. A-96-0197-S, HONORABLE BARBARA WALTHER, JUDGE PRESIDING






	This is an appeal from a conviction for sexual assault committed on July 20, 1995. 
See Tex. Penal Code Ann. § 22.011(a)(1)(A) (West Supp. 1998). (1)  The jury found appellant Heath
Lane Stephens guilty and assessed his punishment at 12 years' imprisonment.

Points of Error

	Appellant advances two points of error.  First, he contends that the "prosecution
of this case was conducted by a person without legal authority to do so."  Second, appellant urges
that the "trial court erred in excluding evidence relevant to consent by misapplying Rule 412,
Texas Rules of Evidence."
A Proper Prosecutor?

	Appellant argues that the elected district attorney of the 51st Judicial District had
the duty and obligation to represent the State in all criminal cases within the district but did not
do so in the instant case.  See Tex. Const. art. V, § 21; Tex. Code Crim. Proc. Ann. art. 2.01
(West Supp. 1998); Tex. Gov't Code Ann. § 43.130 (West 1988).  Appellant acknowledges that
there is a procedure for the appointment of an attorney pro tem, but contends that the basis or
grounds for replacing the district attorney as required by article 2.07 were not met.  Tex. Code
Crim. Proc. Ann. art. 2.07 (West 1997 & Supp. 1998).  Appellant asserts that Lisa Tanner, an
assistant attorney general, and the purported attorney pro tem, represented the State in the instant
case without legal authority to do so.  He claims that he was deprived of the right to deal with the
prosecutor elected by the people.
	Appellant argues that Tanner was without authority to prosecute the case because 
an attorney pro tem can be appointed under article 2.07(a) only when the attorney for the State is
disqualified to act, is absent from the county or district, is otherwise unable to perform the duties
of his office, or in any instance where there is no attorney for the State.  Appellant contends that
none of these requirements were met with regard to the elected district attorney.  The district
attorney's motion for the appointment of a "special prosecutor" was based on the assertion that
the victim and her family had requested the appointment of a "special prosecutor" and that the
district attorney did not oppose the request.  The trial court granted the motion finding that the
reasons set forth were sufficient. 

	Article 2.07(b-1) provides that an attorney for the State who is not disqualified to
act may request the trial court to permit him to recuse himself in a case for good cause and upon
approval by the court is disqualified.  This is the procedure that was followed in the instant case. 
The district attorney was removed from the case and his disqualification met the requirement in
article 2.07(a).  Lisa Tanner took the oath as attorney pro tem and was in control and management
of the case.
	Moreover, appellant's trial counsel was aware of the trial court's action and the
appointment of a "special prosecutor."  At no time during the trial did appellant object to the
authority of the attorney pro tem to conduct the prosecution.  The failure to object waived any
error.  See Tex. R. App. P. 33.1 (former Rule 52(a)); Stanley v. State, 880 S.W.2d 219, 220
(Tex. App.--Fort Worth 1994, no pet.); see also Ethington v. State, 819 S.W.2d 854, 859-60
(Tex. Crim. App. 1991). (2)  Further, in the absence of a showing to the contrary, the presumption
obtains that the person who acted and was recognized by the trial court in prosecuting the case was
duly authorized and qualified.  See Eppes v. State, 10 Tex. 474, 475 (1853); see also Cook v.
State, 146 Cr. R. 523, 176 S.W.2d 941, 943 (1944) (where prosecutor was at least an "officer de
facto," no collateral attack on his authority was permitted).
Distinction Between Terms

	Because the terms "special prosecutor" and "attorney pro tem" were used
interchangeably in the instant record, we call attention to the distinction between the terms.  A
"special prosecutor," with the consent of the district attorney, assists the district attorney in the
investigation and prosecution of a particular case, but the district attorney is responsible for the
prosecution, control and management of the case.  See State v. Rosenbaum, 852 S.W.2d 525, 529
(Tex. Crim. App. 1993) (Clinton, J., concurring); Rogers v. State, 956 S.W.2d 624, 625 n.1
(Tex. App.--Texarkana 1997, pet. ref'd).  The "special prosecutor" need not be appointed by the
trial court and is not required to take the constitutional oath of office where he acts with the
permission of the district attorney.  See Rosenbaum, 852 S.W.2d at 529 n.2 (Clinton, J.,
concurring); Lopez v. State, 628 S.W.2d 77, 80 (Tex. Crim. App. 1982); Reed v. State, 503
S.W.2d 775, 776 (Tex. Crim. App. 1974); Lopez v. State, 437 S.W.2d 268, 269 (Tex. Crim.
App. 1968).  The utilization of a special prosecutor is not predicated upon the absence or
disqualification of the elected district attorney.  See Davis v. State, 840 S.W.2d 480, 487 (Tex.
App.--Tyler 1992, pet. ref'd).
	An "attorney pro tem" is appointed by the district court in accordance with
statutory provisions.  See Tex. Code Crim. Proc. Ann. art. 2.07 (West 1997 & Supp. 1998). 
After taking the required constitutional oath of office, the appointee assumes the duties of the
elected district attorney and in effect replaces the latter in performing germane functions of the
office for purposes contemplated by the appointment.  See Rosenbaum, 852 S.W.2d at 529
(Clinton, J., concurring); Rogers, 956 S.W.2d at 625 n.1.
	The term "special prosecutor" is commonly used in an expansive and often
improper manner by the bench and bar when reference should be to "attorney pro tem" as
contemplated by article 2.07.  This confusion of terms is reflected in appellate opinions.  See, e.g.,
Rosenbaum, 852 S.W.2d at 526 n.1; Ballard v. State, 519 S.W.2d 426, 428 (Tex. Crim. App.
1975); State v. Broaddus, 952 S.W.2d 598, 599 (Tex. App.--Houston [14th Dist.] 1997, pet.
granted); see also Busby v. State, No. 1284-97, slip op. 1-3 (Tex. Crim. App. Sept. 1, 1998)
(Mansfield, J., dissenting).
	In the instant case, the terms were used interchangeably, but it is clear that the trial
court appointed an attorney pro tem under article 2.07.  We do not understand appellant to contend
otherwise.  In such cases, the motion for the appointment of an attorney pro tem, the order
appointing such officer, and the constitutional oath should be carefully worded to distinguish
between an "attorney pro tem" and a "special prosecutor." (3)  The first point of error is overruled.

Rule 412

	In the second point of error, appellant contends that the "trial court erred in
excluding evidence relevant to consent by misapplying rule 412, Texas Rules of Evidence." (4)  He
argues that he should have been permitted to show that the unmarried 17-year-old complainant was
pregnant at the time of the sexual assault.  He urges that the fact of pregnancy is not reputation
or opinion evidence or evidence of a specific instance of an alleged victim's past sexual behavior
as contemplated by Rule 412. He argues that even if pregnancy is included within the scope of the
rule under the facts of this case, the need to expose the complainant's motive to lie (5) and therefore
impeach her testimony of non-consent makes the evidence more probative than prejudicial. (6)
	The history of Rule 412 and its forerunners may be found elsewhere and need not
be restated here.  See, e.g., Allen v. State, 700 S.W.2d 924, 928-32 (Tex. Crim. App. 1985);
Cuyler v. State, 841 S.W.2d 933, 936 (Tex. App.--Austin 1992, no pet.); Hulen D. Wendorf,
David A. Schlueter & Robert R. Barton, Texas Rules of Evidence, article IV at 151-52 (3d ed.
1994); 1 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Guide to the Texas Rules
of Evidence: Civil and Criminal, § 412.1 at 295-97 (Texas Practice--1993).
	Rule 412, like its predecessor statute, represents an explicit decision to eliminate
trial practices that may have frustrated society's vital interest in the prosecution of sexual crimes. 
See Allen, 700 S.W.2d at 929-30; Cuyler, 841 S.W.2d at 936; see also Draheim v. State, 916
S.W.2d 593, 599 (Tex. App.--San Antonio 1996, pet. ref'd).
	Rule 412 applies in prosecutions for sexual assault, aggravated sexual assault, or
for attempts to commit sexual assault or aggravated sexual assault.  Rule 412(a) absolutely
prohibits opinion or reputation evidence of the past sexual behavior of an alleged victim in these
prosecutions.  Under Rule 412(b), however, evidence of specific instances of past sexual behavior
may be admitted when three conditions are met.  First, the procedural requirements of paragraph
(c) and (d) concerning the in-camera hearing and the sealing of the record must be satisfied. 
Second, the proponent of the evidence must establish that the evidence of specific instances of the
victim's sexual behavior fall into one of the five categories set forth in Rule 412(b)(2).  Third,
under Rule 412(b)(3) the probative value of the offered evidence must outweigh the danger of
unfair prejudice.  Even if the evidence falls within the enumerated categories of Rule 412(b)(2),
the court must further find that its probative value outweighs the danger of unfair prejudice.  See
Holloway v. State, 751 S.W.2d 866, 869-70 (Tex. Crim. App. 1988).  Simply put, if the evidence
falls within any of the exceptions itemized in Rule 412(b)(2) and (7) its probative value outweighs
the danger of unfair prejudice, it is admissible.  See Hood v. State, 944 S.W.2d 743, 745-47 (Tex.
App.--Amarillo 1997, no pet.) (citing Boyle v. State, 820 S.W.2d 122, 148-49 (Tex. Crim. App.
1989), cert. denied, 503 U.S. 921 (1992)).

Balancing Test

	The function of the balancing test of Rule 412(b)(3) is generally consistent with that
under Rule 403.  Tex. R. Crim. Evid. 403.  The tests do differ somewhat.  Under Rule 403, the
opponent of the evidence bears the burden of showing that the danger of unfair prejudice
substantially outweighs the probative value of the evidence.  Under Rule 412(b)(3) the burden falls
on the proponent of the evidence, the defendant, to show that the probative value of the evidence
outweighs the unfair prejudice.  The general balancing test under Rule 403 weighs in favor of the
admissibility of evidence, while Rule 412(b)(3) weighs against the admissibility of evidence.  See
Boyle, 820 S.W.2d at 148 n.9.
	In light of the underlying policies of Rule 412, it is reasonable to assume the "unfair
prejudice" language therein includes prejudice to the victim, who will potentially be stigmatized
if the defendant is able to introduce evidence of sexual behavior.  See generally, Hulen D.
Wendorf, David A. Schlueter & Robert R. Barton, Texas Rules of Evidence Manual, article IV
at 153 (3d ed. 1994).  With this background, we turn to the facts of this case.

Facts

	Although appellant does not challenge the sufficiency of the evidence to sustain the
conviction, a brief summary of the facts is pertinent to appellant's contention.  J. H., the
complainant, was permitted by her parents to stay at her San Angelo home with a high school
girlfriend while the family vacationed in the Yellowstone National Park.  Her "ground rules"
included prohibitions against drinking or going to bars or having parties at the family home. 
During this time period, on or about July 18, 1995, J. H. "broke up" with her boyfriend, D. W. 
On July 19, 1995, J. H., her friend, Sydnie Hoefs and several high school friends went water
skiing together.  Later that day and evening at J. H.'s house, they consumed various alcoholic
beverages.  J. H. testified that she was drinking tequila and became intoxicated.  Either she or
someone in the group telephoned a "bouncer" at the City Limits Bar in San Angelo, who agreed
to permit their entry into the establishment although some in the group were under age.  It was
"College Night" at the bar.  Although intoxicated, J. H. drove Hoefs and Jeff Corbell to the bar. 
D. W., J. H.'s boyfriend, related that he had come to J. H.'s home and followed the group to the
bar.  At the bar, Corbell, a high school friend of J. H. and others in the group, encountered
appellant at the bar.  Appellant was an acquaintance of Corbell's parents and Corbell knew
appellant "from McCamey."  Near closing time for the bar at 2:00 a.m. on July 20, 1995, plans
were made for several of J. H.'s friends to go to her house.  Without J. H.'s knowledge, Corbell
invited appellant to join them.  As J. H. was driving home, Corbell informed her of his invitation
and pointed to the pick-up truck following them.  Beer was brought to the house by several of the
individuals attending the "party."  At one point, J. H. stepped outside the house with another
individual and met appellant for the first time.  She smoked a cigarette he offered her.  About five
minutes later, she left to talk to D. W. who had earlier asked her if they could "get back
together."  J. H. and D. W. went to her bedroom on the second floor and agreed that they would
date again.  As they lay on the bed, D. W. reached over to kiss J. H., but she turned over, telling
him she wanted to go to sleep.  D. W. left the fully-clothed J. H., turned off the light, shut the
door and went home.  The time was about 3:00 a.m.
	J. H. was awakened some time later by someone with a hairy chest laying on top
of her and pulling off her shorts and panties.  Drifting in and out of consciousness, J. H.
repeatedly tried to push the person off of her, told him "No" and asked him to stop, and inquired
who he was.  She was unable to push the man away and he had sexual intercourse with her without
her consent.  When she was able, she turned on the bedroom lamp and saw appellant.  J. H.
immediately put on clean shorts and panties and ran downstairs.  She was crying and was
hysterical.  She screamed that she had been raped.  Corbell ran to the upstairs bedroom and found
appellant putting on his shirt.  Corbell told appellant to leave, which he did.  Sydnie Hoefs called
the police.
	J. H. was taken to the Shannon Medical Center where a "rape kit examination" was
performed.  Anne Powell, the examining nurse, observed the beginning of a bruise at the opening
of the complainant's cervix caused by a recent blunt trauma, inconsistent with consensual sex. 
Semen was also found by the use of a vaginal swab.  Blood was later obtained from appellant. 
Subsequent DNA testing of the semen revealed that it was consistent with appellant being the
donor of the semen.  D. W. was excluded as a donor of the semen.  
	Appellant, a 28-year-old ranch hand at the time, admitted that he had sexual
intercourse with the complainant.  He related that Corbell had introduced him to J. H. at the City
Limits Bar, and at Corbell's invitation he had gone to J. H.'s house with the high school and 
college students.  There, he recalled sharing a cigarette with J. H. and talking to her for about five
minutes.  Later, at Corbell's suggestion, he went to J. H.'s bedroom for the purpose of having sex
with her.  He claimed that she agreed that he could join her in bed, that he took off his clothes and
she removed her shorts and panties, and they then had consensual sexual intercourse without even
having kissed.  Appellant contended that J. H. never resisted his advances but accused him of rape
afterwards.  In rebuttal, Corbell specifically denied suggesting or sending appellant to J. H.'s
bedroom.  The evidence is clear that prior to the date of the offense that appellant and J. H. did
not know each other.

In Camera Hearing

	During the complainant's testimony and in the absence of the jury, the trial court
conducted an in-camera hearing pursuant to Rule 412(c).  Appellant's counsel urged that he had
learned that the complainant was pregnant at the time of the offense, later had an abortion, and had
in the past used contraceptives.  This showed that the complainant was sexually  active, and he
argued that the evidence was admissible under Rule 412(b)(2)(c) as it related to the motive or bias
of the alleged victim, and that under Rule 412(b)(3) the probative value outweighed the danger of
unfair prejudice.  Although not raised at the time, counsel asserted that there later would be an
issue of consent in the case.
	At the hearing it was elicited from the complainant that she had used contraceptives
since she was 15 years old.  She also revealed that during her examination at the hospital she
agreed to take a "morning-after" pill, but was informed that first she had to take a pregnancy test. 
Shortly after that test, she was informed that she was pregnant and could not take the pill.  The
complainant testified that she had no idea that she was pregnant. (8)  She told her parents that the
father of the child "most likely" was D. W.
	The initial one-witness hearing consisted of more legal argument and bench
colloquy than testimony.  Appellant argues that even if the complainant did not know she was
pregnant she might have suspected the same and cried "rape" to conceal her sexual activities with
her boyfriend and her violation of her parents' "ground rules."  The trial court doubted that
appellant had shown any evidence as to motive, but ruled that under any circumstances the
probative value of the evidence did not outweigh the danger of unfair prejudice.  The trial court
denied the admission of the proposed evidence, including the fact of pregnancy, which is the only
evidence that appellant now claims on appeal should have been admitted.
	Later, the trial court reopened the Rule 412 hearing to permit the testimony of the
examining nurse, Anne Powell.  Her testimony generally corroborated the complainant's testimony
at the earlier in-camera hearing including complainant's surprise as to the fact of pregnancy.  After
this second hearing, we do not find that appellant obtained any ruling from the trial court.  At
least, the trial court did not change its earlier ruling.  When appellant raised the issue of consent
by his trial testimony, his counsel sought no further relief from the trial court's earlier Rule 412
ruling.
	The evidence suggesting that the complainant falsely accused appellant to protect
her relationship with her boyfriend, her pregnancy, and her violations of the "ground rules" is
either nonexistent or extremely thin.  The complainant herself informed her parents about her
pregnancy and the "most likely" father.  Appellant speculates that the complainant falsely accused
him because she may have suspected her pregnancy and feared that her sexual relationship with
her boyfriend would be disclosed.  It is clear that appellant did not demonstrate a definite and
logical link between the complainant's past sexual conduct and the alleged motive and bias under
Rule 412(b)(2)(C).
	There is compelling evidence that complainant was veracious in her accusation
against appellant.  Her testimony was supported by the medical examination, the DNA evidence,
and in part by appellant's own admission.  The 28-year-old ranch hand had joined the group of
high school and young college students at the complainant's home upon the invitation of a non-host.  He had observed the condition of the 17-year-old complainant who had earlier been
intoxicated and he went to her bedroom for the purpose of having sex.  He claimed consent only
after he entered the room.
	Under any circumstances, the probative value of the evidence of pregnancy did not
outweigh the danger of unfair prejudice.  This is particularly true in light of the undisputed fact
that appellant had sexual intercourse with the complainant, and that the evidence of the
complainant's fabrication was tenuous at best.  Introducing evidence of her pregnancy, clearly 
the result of some sexual encounter, would contravene the intent of Rule 412 and subject the
victim to ridicule, embarrassment, and humiliation.  The admission of this type of evidence
outweighs the potential usefulness of the evidence.  Cf. Cooper v. State, 959 S.W.2d 682, 684-85
(Tex. App.--Austin 1997, pet. ref'd).  The trial court did not abuse its discretion in excluding the
evidence.  We reject appellant's claim under the facts of this case that evidence of pregnancy lies
outside the scope of Rule 412.  The second point of error is overruled.
	The judgment is affirmed.


  
	John F. Onion, Jr., Justice
Before Chief Justice Yeakel, Justices B. A. Smith and Onion*
Affirmed
Filed:    October 22, 1998
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.   The current law is cited for convenience.  The law applicable to the instant offense is Act
of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3618, effective
September 1, 1994, since amended. The statutory provisions have remained unchanged.
2.   Appellant raised the issue of the attorney pro tem's authority to prosecute in his motion
for new trial.  After a hearing, the trial court overruled the motion.  Absent an abuse of discretion,
the reviewing court will not overturn a trial court's decision on a motion for new trial.  See Lewis
v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzales, 855 S.W.2d 692, 696 (Tex.
Crim. App. 1993); Guice v. State, 900 S.W.2d 387, 389 (Tex. App.--Texarkana 1995, pet.
ref'd).  On appeal, appellant has not raised any issue that the trial court abused its discretion in
overruling his motion for new trial.
3.   The term "special prosecutor" first appeared in the 1965 Texas Code of Criminal
Procedure when added to article 2.01 discussing the primary duties of all prosecuting attorneys
"including any special prosecutors."  Rosenbaum, 852 S.W.2d at 529 (Clinton, J., concurring);
see Act of May 27, 1965, 59th Leg., R.S., ch. 725, 1965 Tex. Gen. Laws 317, 324, since
amended, Tex. Code Crim. Proc. Ann. art. 2.01 (West Supp. 1998) (containing same language). 
The Legislature may well have used the term in its broadest sense in this statute.
4.   Rule 412 of the Texas Rules of Evidence provides in part:

(a)	Reputation or Opinion Evidence.  In a prosecution for sexual assault or
aggravated sexual assault, or attempt to commit sexual assault or aggravated
sexual assault, reputation or opinion evidence of the past sexual behavior of
an alleged victim of such crime is not admissible.

(b)	Evidence of Specific Instances.  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 relates 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.
5.   See Rule 412(b)(2)(C).
6.   See Rule 412(b)(3).
7.   Notice should be taken of the conjunctive "and" found in Rule 412(b).
8.   There was evidence that the complainant had reported to hospital personnel that her last
"period" was on June 20, 1995, and her last act of sexual intercourse was on July 13, 1995.  In
her testimony at the hearing, the complainant said that she was unsure as to the last date.

SPAN>
Affirmed
Filed:    October 22, 1998
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.   The current law is cited for convenience.  The law applicable to the instant offense is Act
of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, 1993 Tex. Gen. Laws 3586, 3618, effective
September 1, 1994, since amended. The statutory provisions have remained unchanged.
2.   Appellant raised the issue of the attorney pro tem's authority to prosecute in his motion
for new trial.  After a hearing, the trial court overruled the motion.  Absent an abuse of discretion,
the reviewing court will not overturn a trial court's decision on a motion for new trial.  See Lewis
v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995); State v. Gonzales, 855 S.W.2d 692, 696 (Tex.
Crim. App. 1993); Guice v. State, 900 S.W.2d 387, 389 (Tex. App.--Texarkana 1995, pet.
ref'd).  On appeal, appellant has not raised any issue that the trial court abused its discretion in
overruling his motion for new trial.
3.   The term "special prosecutor" first appeared in the 1965 Texas Code of Criminal
Procedure when added to article 2.01 discussing the primary duties of all prosecuting attorneys
"including any special prosecutors."  Rosenbaum, 852 S.W.2d at 529 (Clinton, J., concurring);
see Act of May 27, 1965, 59th Leg., R.S., ch. 725, 1965 Tex. Gen. Laws 317, 324, since
amended, Tex. Code Crim. Proc. Ann. art. 2.01 (West Supp. 1998) (containing same language). 
The Legislature may well have used the term in its broadest sense in this statute.
4.   Rule 412 of the Texas Rules of Evidence provides in part:

(a)	Reputation or Opinion Evidence.  In a prosecution for sexual assault or
aggravated sexual assault, or attempt to commit sexual assault or aggravated
sexual assault, reputation or opinion evidence of the past sexual behavior of
an alleged victim of such crime is not admissible.

(b)	Evidence of Specific Instances.  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 relates to the motive or bias o