                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-11-00253-CR


Joe Dale Johnson                           §    From the 89th District Court

                                           §    of Wichita County (48,790-C)

v.                                         §    February 14, 2013

                                           §    Opinion by Justice Dauphinot

The State of Texas                         §    (nfp)

                                    JUDGMENT

      This court has considered the record on appeal in this case and holds that

there was error in the trial court’s judgment. It is ordered that the judgment of the

trial court is reversed as to the indecency with a child by contact conviction and

sentence, that that conviction and sentence are set aside, and that Appellant is

acquitted of Count Three of the indictment. It is further ordered that the trial court’s

judgment is reversed as to the two aggravated sexual assaults alleged in Counts

One and Two of the indictment, and this case is remanded to the trial court for a

new trial on those two counts only.
SECOND DISTRICT COURT OF APPEALS



By_________________________________
  Justice Lee Ann Dauphinot




   2
                          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

                                       ----------

                          MEMORANDUM OPINION1

                                       ----------

      A jury convicted Appellant Joe Dale Johnson of two counts of aggravated

sexual assault of a child and one count of indecency with a child, enhanced, and

assessed his punishment at life imprisonment. The trial court sentenced him

accordingly. In three issues, Appellant argues (1) that the evidence is insufficient to

support his conviction for indecency with a child by contact because such alleged


      1
       See Tex. R. App. P. 47.4.



                                           3
contact is subsumed in the first count of aggravated sexual assault of a child and

convictions for both violate double jeopardy protections; (2) that the trial court

abused its discretion by excluding evidence that the complainant had sexually

assaulted his younger sister; and (3) that the trial court abused its discretion by

admitting evidence of Appellant’s thirty-year-old prior conviction at the guilt phase of

trial. Because the evidence is insufficient to support both Count One and Count

Three, we reverse the trial court’s judgment as to Count Three, set aside Appellant’s

conviction and sentence for indecency with a child by contact, and enter a judgment

of acquittal on Count Three. Because the trial court reversibly erred by refusing to

allow Appellant to correct a confusing or misleading impression on the jury by

putting on evidence of the complainant’s prior, sexual misconduct, we reverse the

trial court’s judgment as to Counts One and Two and remand this cause to the trial

court for a new trial on those counts.

Background Facts

      Complainant H.H. was a twelve-year-old boy who was participating in court-

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

He had also been caught shoplifting and had strained relationships with his parents.

Appellant, a man in his fifties and a board member of the church that he and the

complainant attended, had previously been convicted of a sexual offense against a

teenage boy thirty years before in Kansas. Appellant and the complainant spent

time together, and the complainant accepted work mowing Appellant’s and other

church members’ lawns for pay. The complainant testified that Appellant had lured


                                           4
him into Appellant’s study and that Appellant had seduced him into allowing

Appellant to perform fellatio on him and sought to have the complainant perform

fellatio on Appellant. The complainant eventually told the youth minister, who was

never interviewed by law enforcement and did not testify at trial, what had

happened. The youth minister went to the complainant’s parents to tell them what

their son had told him. The parents, in turn, reported what they had been told to the

Burkburnett Police Department. The purported offenses were alleged to have

occurred in April 2007.

      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. He also argued that the complainant’s past sexual behavior could be


                                         5
motive or bias for making 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.

Double Jeopardy

      In his third issue, Appellant argues that because the crime of indecency with a

child by contact, as alleged in Count Three of the indictment, was subsumed in the

crime of aggravated sexual assault of a child as alleged in Count One of the

indictment, the evidence is insufficient to show that Appellant committed a separate

indecency offense as alleged in the indictment. He further argues that having two

convictions rely on the same act of touching violates double jeopardy protections.

The record clearly shows that the sexual contact proved at trial occurred during and

as part of the aggravated sexual assault alleged in Count One. As the State

candidly concedes, to allow both convictions to stand would violate the double

jeopardy clause of the Constitution of the United States.2 Because the contact

alleged in Count Three was subsumed in the aggravated sexual assault of a child

alleged in Count One, we sustain Appellant’s third issue. We reverse the trial

court’s judgment as to Count Three, set aside Appellant’s conviction and




      2
       See U.S. Const. amend. V; Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct.
2221, 2225 (1977); Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990)
(op. on reh’g).



                                          6
punishment for indecency with a child by contact as alleged in Count Three,3 and

enter a judgment of acquittal on Count Three.4

Evidentiary Issues

      The Complainant’s Prior Bad Acts

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

evidence in violation of the Sixth Amendment, the Due Process Clause, and rules of

evidence 404(B) and 412 that the complainant had sexually assaulted his younger

sister. 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.”

      The State concedes that Appellant preserved his constitutional complaint but

argues that he failed to preserve that portion of his complaint concerning the State’s

creating a false impression. After reviewing the record, we disagree. In offering the

evidence, defense counsel argued,



      3
        See Bigon v. State, 252 S.W.3d 360, 373 (Tex. Crim. App. 2008) (retaining
first-degree felony as “most serious offense” over second-degree felony with
identical sentence); Ex parte Pruitt, 233 S.W.3d 338, 348 (Tex. Crim. App. 2007)
(holding genital contact subsumed within alleged incident of penetration is lesser
included offense of penetration); Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim.
App. 2004) (holding penile contact with genitals in course of penile penetration
subsumed).
      4
       See Bigon, 252 S.W.3d at 373.



                                          7
              And the Merch case and others have said that the—the person’s
      mental state at the time that, you know, he—he makes this outcry, I
      think is relevant and what’s going on in his head. And he said that it
      affected his mental state. That’s what he was in counseling for and so I
      think it goes in for that.

Indeed, 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. That was an impression that Appellant

sought to dispel at trial and now seeks to dispel on appeal. We therefore hold that

Appellant sufficiently preserved this entire issue for appellate review.

      Outside the presence of the jury, the complainant testified 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.         There was evidence that the

counseling was court-ordered as a result of the complainant’s 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 contributed to his

emotional difficulties. Before the jury, however, the complainant’s father testified

that the complainant was being bullied at school, suffering from depression, had a


                                          8
stressful relationship with his parents, and had been caught shoplifting. Watching

pornography was also an issue. The complainant’s father testified that those were

the reasons that he and his wife had placed the complainant in counseling,

although, when asked if the complainant was in counseling before April 2007, his

father testified that he could not remember when counseling began. The following

exchange occurred before the jury:

      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.

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

of his sister. 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. According to his father, the complainant

had viewed pornography at least since he was ten years old. 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

also 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,




                                          9
      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?

      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. We disagree. 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



                                           10
      rules, and the common law. Where possible, inconsistency is to be
      removed by reasonable construction.5

      The Texas Court of Criminal Appeals addressed the appropriate balancing of

interests between rule 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 witness’s specific bias, motive, or
      interest to testify in a particular fashion.6

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

evidentiary rule would prohibit him from cross-examining a witness concerning

possible motives, bias, and prejudice to such an extent that he could not present a

vital defensive theory.”7

      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

      5
       Tex. R. Evid. 101(c).
      6
       296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009) (footnotes omitted).
      7
       Id. at 562–63.




                                        11
sexual acts that he claimed Appellant committed against him, essentially natural

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

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

predator. Finally, 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 rebut8 as part of his fundamental due process right to

confront and cross-examine witnesses against him in challenging the State’s case.9


      8
        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).
      9
       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


                                         12
      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.10

      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. He 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



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 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.”).
      10
        380 U.S. 400, 405, 85 S. Ct. 1065, 1068 (1965).



                                         13
State had presented to the jury, but the trial court impermissibly limited his right to

cross-examine both the complainant and other witnesses against Appellant and to

present evidence. We therefore 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 44.2(a) of the Rules of Appellate Procedure 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 contribute to the conviction or punishment.”11 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. We therefore cannot

say beyond a reasonable doubt that the error did not contribute to Appellant’s

convictions or punishment on the two remaining counts.



      11
        Tex. R. App. P. 44.2(a).



                                          14
      In summary, 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, and

the degree to which he understood sexual matters and to which he personally

appreciated legal consequences imposed upon sex offenders.

      It should be clear, however, that this opinion is not a green light for Appellant

in any subsequent retrial, or for other litigants in other similar cases, to explore in

detail the sexual exploits of the complainant or those in positions similar to that in

which the complainant finds himself in this case. It is the fact that, and the manner

in which, the State created a false impression that opened the door to evidence that

the complainant had sexual issues before he met Appellant. We stress that our

holding is confined to the record presented in this appeal. The details of the

complainant’s abuse of his sister, in terms of its nature, frequency, and duration,

may not be necessary to rebut the false impression that the complainant did not

have issues of a sexual nature before his alleged sexual encounter with Appellant.

With these reservations clearly understood, we sustain Appellant’s first issue, and

because of our disposition of this issue, we do not reach his second issue.12



      12
        See Tex. R. App. P. 47.1.



                                          15
Conclusion

      Having sustained Appellant’s third issue, we reverse the trial court’s judgment

as to the indecency with a child by contact conviction and sentence, set aside that

conviction and sentence, and enter a judgment of acquittal as to Count Three of the

indictment. Having sustained Appellant’s first issue, we reverse the trial court’s

judgment as to the two aggravated sexual assaults alleged in Counts One and Two

of the indictment and remand this case to the trial court for a new trial on those

counts only.



                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

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

DELIVERED: February 14, 2013




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