Opinion filed May 27, 2011




                                             In The


   Eleventh Court of Appeals
                                          __________

                                    No. 11-09-00175-CR
                                        __________

                       JAMES LANDON ROBERTS, Appellant

                                                V.

                               STATE OF TEXAS, Appellee


                             On Appeal from the 35th District Court

                                     Brown County, Texas

                                Trial Court Cause No. CR19795


                             MEMORANDUM OPINION

       The jury convicted James Landon Roberts of two counts of sexual assault and assessed
his punishment at confinement for twelve years for each count – to run concurrently. We affirm.
                                              Issues
       Appellant presents fourteen issues on appeal. In the first three issues, he complains that
the prosecutor improperly asked ―commitment‖ questions during voir dire. In the next seven
issues, he contends that the trial court erred in excluding assorted evidence. In the eleventh and
twelfth issues, he asserts that the trial court should have granted his requests for mistrial based
upon the State’s destruction of a taped interview of the victim and upon the State’s introduction
of appellant’s use of a controlled substance in violation of a motion in limine. In his thirteenth
issue, appellant argues that the trial court erred in admitting at the guilt/innocence phase of trial
evidence of appellant’s prior arrests. In his final issue, appellant asserts that the trial court
should have granted appellant’s motion for new trial based upon the State’s outrageous conduct.
                                         Background Facts
       Appellant does not challenge the sufficiency of the evidence. The record shows that
appellant and his wife, Trinity Roberts, were codefendants in this case and were tried together
for the offenses of sexual assault. The victim in this case was Trinity’s fourteen-year-old cousin,
who had come to spend the week with the Roberts. Appellant was convicted of two of the five
counts with which he had been charged, and Trinity was convicted of one of two counts. Trinity
received community supervision and has not appealed. Appellant’s convictions are supported by
evidence showing that he committed sexual assault by causing his sexual organ to penetrate the
victim’s mouth on two separate occasions.
                                      Voir Dire Commitment
       Appellant argues that three different questions asked by the prosecutor constituted
improper attempts to commit the veniremembers to answer an issue a certain way after learning a
particular fact. The first such alleged attempt occurred when the prosecutor, in asking the
potential jurors to discount preconceived notions about defendants, stated: ―[Y]ou won’t limit me
to, well, married couples can’t be Co-Defendants in a sexual assault, that just doesn’t happen? Is
everybody here going to keep an open mind to that, not have any preconceived notions about
that?‖ Before anyone responded, appellant objected that the prosecutor was attempting to
contract with the jurors, and the prosecutor responded that he was ―asking about preconceived
notions and dispositions to discount based on those preconceived notions.‖ The trial court
overruled appellant’s objection and instructed the veniremembers that they had not heard the
evidence and that, to be fair jurors, they would have to keep an open mind until all the evidence
had been presented.     The trial court further explained that voir dire questions are merely
―hypothetical questions to give you what-if scenarios to get a sense of how you might feel about
things. But you are under no obligation -- there will be no contracts with anyone about what
you’re going to do or not do other than to follow the law and to be fair and impartial jurors in
your decisions.‖    The prosecutor then continued, ―Does anybody on the left side have

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preconceived notions about who Defendants can be in sexual assault cases that would prevent
you from sitting fairly and impartially in this case?‖
       The second alleged commitment occurred when the prosecutor asked: ―[D]oes anybody
have any preconceived notions about how a victim is going to act like to the extent that a person
takes the stand and doesn’t act that way, then it is going to cause you to have some sort of bias or
prejudice because of your preconceived notions?‖           The third instance occurred when the
prosecutor asked ―how many witnesses‖ the veniremembers would expect to hear from ―about
the direct circumstances of what happened‖ in a sexual assault case. The trial court again
overruled appellant’s objections.
       Appellant correctly states that an attorney cannot attempt to bind or commit prospective
jurors to a particular verdict or result based on a hypothetical set of facts. See Standefer v. State,
59 S.W.3d 177, 179 (Tex. Crim. App. 2001). The purpose for prohibiting such questions is ―to
ensure that the jury will listen to the evidence with an open mind—a mind that is impartial and
without bias or prejudice.‖ Sanchez v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005). To
determine whether a voir dire question called for an improper commitment, we must first
determine whether the particular question was in fact a commitment question and, if so, then
determine whether it was an improper one. Lee v. State, 206 S.W.3d 620, 621 (Tex. Crim. App.
2006). The questions asked by the prosecutor in this case were not commitment questions
because the possible answers would not have indicated that the jurors would resolve or refrain
from resolving an issue in this case based upon a particular fact. Issues One, Two, and Three are
overruled.
                                           Exclusion of Evidence
       In the next seven issues, appellant complains of the trial court’s exclusion of the
following evidence: a photograph purportedly depicting a member of the victim’s family using
marihuana in the victim’s presence; photographs depicting the victim wearing an ―I Love Boobs‖
breast cancer awareness T-shirt at appellant’s house, which appellant suggests was ―sexually
suggestive‖; testimony regarding an ongoing dispute between appellant and the victim’s family
about their use of marihuana; testimony of the victim’s mother’s drug use; testimony indicating
that a friend of the victim’s mother had recently died from a drug overdose; evidence that the
victim’s mother had been arrested and had received deferred adjudication for possession of
marihuana; and testimony from Trinity regarding drug use by the victim’s family and an ongoing

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dispute over such drug use. Appellant argues that the proffered evidence was ―in essence,
evidence of the character of the victim‖ and tended ―to prove that the child had a character trait
of being licentious.‖      Appellant asserts that the victim’s ―licentious character‖ should be
admissible to rebut the false impression left by the State’s evidence that the victim was not
sexually aggressive and that she was forced or lured into the conduct.
        A trial court’s decision to admit or exclude evidence is reviewed on appeal for an abuse
of discretion. Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Burden v. State, 55
S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial court’s
ruling excluding evidence unless that ruling falls outside the zone of reasonable disagreement.
Burden, 55 S.W.3d at 615.
        Evidence regarding the sexual history or promiscuity of a sexual assault victim is not
admissible unless (1) it is evidence of a specific instance of conduct that is necessary to rebut or
explain scientific or medical evidence offered by the State, that occurred with the accused and
relates to the issue of consent,1 that relates to the motive or bias of the victim, that is admissible
impeachment evidence showing a prior conviction, or that is constitutionally required to be
admitted and (2) its probative value outweighs the danger of unfair prejudice.                     TEX. R.
EVID. 412; see Delapaz v. State, 297 S.W.3d 824, 827 (Tex. App.—Eastland 2009, no pet.). The
excluded evidence, with which appellant attempted to show the victim’s ―licentious character,‖
was properly excluded as it did not fall into any of the Rule 412 exceptions. Furthermore, the
photographs of the victim wearing an ―I Love Boobs‖ T-shirt were excludable under either TEX.
R. EVID. 402 as irrelevant or TEX. R. EVID. 403 because the probative value of the photographs
was substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury. Moreover, based upon our review of the record, we cannot agree with
appellant’s contention that the State left a false impression about the victim or the incident. The
victim testified that she was not threatened or physically forced to do anything and that she
performed oral sex on appellant and Trinity without being forced or requested to do so. The trial
court permitted testimony showing that the victim acted in a sexually aggressive manner toward
appellant and that no force was used against the victim.



        1
         We note that consent was not an issue in this case since the victim was a child. See TEX. PENAL CODE
ANN. § 22.011 (Vernon 2011).

                                                     4
       With respect to the victim’s motive or bias, at the time Trinity was asked about the
discord caused by the victim’s family’s use of drugs, the jury had already heard evidence that
there was discord and conflict between the victim’s family and appellant. Trinity was allowed to
testify that there was animosity between her family and appellant because of the behavior of her
family (including the victim’s parents) and appellant’s criticism of their behavior. The evidence
also showed that the victim was mad at appellant and Trinity and had argued with them. Thus,
appellant was not prevented from showing that the victim and other family members were biased
and had a motive to testify against appellant. It was within the trial court’s discretion to deter-
mine that further information regarding the use of drugs as the behavior that was criticized was
not admissible under the Rule 403 balancing test. Evidence indicating that the victim’s family
members used marihuana or that a friend had died of a drug overdose was not shown to be
relevant to any issue in this case, and the trial court was within its discretion in excluding such
evidence under Rule 402 or Rule 403. Evidence indicating that the victim’s mother had been
arrested for possession of marihuana and had been placed on deferred adjudication community
supervision was inadmissible. TEX. R. EVID. 608(b), 609. The trial court did not abuse its
discretion in excluding the proffered evidence. Issues Four, Five, Six, Seven, Eight, Nine, and
Ten are overruled.
                                Destruction of Recorded Interview
       In his eleventh issue, appellant contends that the trial court erred in denying a motion for
mistrial based upon a detective’s intentional destruction of a recording of her initial interview
with the victim. Detective Lana Guthrie testified that she had recorded an interview with the
victim and used the recording to make her notes, that she does not keep a copy of such
recordings, and that she had destroyed the recording prior to any charges being filed. Appellant
requested a mistrial, and the trial court ultimately denied appellant’s motion for mistrial.
       In addressing whether the pretrial destruction of evidence constitutes a denial of due
process of law, the Supreme Court has drawn a distinction between ―material, exculpatory
evidence‖ and ―potentially useful evidence.‖ Arizona v. Youngblood, 488 U.S. 51, 57, 58 (1988).
A due process violation occurs when the State suppresses or fails to disclose material,
exculpatory evidence, regardless of whether the State acted in bad faith. Id. However, when the
State has destroyed potentially useful evidence, as opposed to material exculpatory evidence, the
defendant must show that the State acted in bad faith in destroying the evidence. Id.; Ex parte

                                                  5
Napper, 322 S.W.3d 202, 229 (Tex. Crim. App. 2010); McGee v. State, 210 S.W.3d 702, 704
(Tex. App.—Eastland 2006, no pet.). The presence or absence of bad faith for purposes of due
process turns on the State’s knowledge of the exculpatory value of the evidence at the time it was
lost or destroyed. Youngblood, 488 U.S. at 56 n.*; California v. Trombetta, 467 U.S. 479
(1984); Napper, 322 S.W.3d at 230-34.
       Appellant has not shown that the recording was destroyed in bad faith. The evidence did
not show that the recording would have been exculpatory in any way or that Detective Guthrie
had an improper motive in destroying it, such as animus toward appellant or a conscious effort to
suppress evidence. See Napper, 322 S.W.3d at 231-34. Appellant’s eleventh issue is overruled.
                              State’s Violation of Motion in Limine
       In the twelfth issue, appellant asserts that the trial court erred in denying the motion for
mistrial that appellant made after the State introduced, in violation of a motion in limine,
evidence that appellant used a controlled substance. The victim testified that appellant took
―codeine -- or his medicine with alcohol‖ and that Trinity smoked marihuana.             Appellant
immediately objected. The trial court sustained appellant’s objection, sanctioned the prosecutor,
denied appellant’s motion for mistrial, and instructed the jury to disregard. A prompt instruction
to disregard ordinarily cures error caused by an improper question and answer regarding an
extraneous offense. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).
       Under the facts in this sexual assault case, the trial court could have reasonably
concluded that the victim’s testimony regarding appellant taking codeine was not so
inflammatory as to be incurable by an instruction to disregard. Thus, the trial court did not abuse
its discretion in overruling appellant’s motion for mistrial.         Appellant’s twelfth issue is
overruled.
                              Evidence of Appellant’s Prior Arrests
       In the next issue, appellant contends that the trial court erred in admitting evidence of his
prior arrests. After determining that appellant opened the door on that topic and created a false
impression, the trial court permitted the State to cross-examine appellant regarding his seven
prior arrests. Appellant had only one prior conviction, which was for the misdemeanor offense
of driving while intoxicated. Generally, evidence of such extraneous offenses or bad acts is not
admissible. TEX. R. EVID. 404(b), 608, 609. However, when the accused testifies and, by his
direct testimony or gratuitously on cross, leaves a false impression of his lack of involvement

                                                 6
with the police, the trial court may permit the State to correct the false impression by showing
the accused’s prior involvement with the police. Hammett v. State, 713 S.W.2d 102, 105-06
(Tex. Crim. App. 1986); Ex parte Carter, 621 S.W.2d 786, 788 (Tex. Crim. App. 1981); see
Daggett v. State, 187 S.W.3d 444, 453 & n.24 (Tex. Crim. App. 2005).
       The record shows that appellant had testified that his interview with Detective Guthrie
was a horrible experience.        During cross-examination, the prosecutor surmised that the
experience ―wasn’t [horrible] because of Mrs. Guthrie holding a gun to your head or locking you
in a room or anything such as that, was it?‖ Appellant gratuitously answered: ―I’m not the type
of person to continuously deal with law enforcement.‖ The trial court subsequently allowed the
State to correct the false impression left by appellant regarding his lack of contact with law
enforcement. The State did not spend much time developing the evidence, and it also elicited the
fact that the prior arrests were for less serious crimes involving property, theft, and alcohol,
which were unlikely to impress the jury in some irrational way in this sexual assault case. The
trial court did not abuse its discretion in allowing the State to ask appellant about his prior arrests
after appellant opened the door with his testimony or in determining that the probative value of
such evidence was not substantially outweighed by the danger of unfair prejudice. See Rule 403;
Daggett, 187 S.W.3d at 453 & n.24. Appellant’s thirteenth issue is overruled.
                                             Misconduct
       In his final issue, appellant argues that the trial court erred in not granting a new trial
based upon the outrageous conduct committed by a member of the district attorney’s staff.
Appellant contends that the victim coordinator for the district attorney’s office instructed the
victim as follows, ―Well, whatever you’ve got to do to get it out, do it.‖ The defense witness
who overheard these instructions to the victim could not say exactly what the term ―it‖ referred
to, but she said that the statement was made during a conversation concerning what the victim
could and could not say in the courtroom.
       An appellate court reviews a trial court’s ruling on a motion for new trial using an abuse-
of-discretion standard of review. Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007).
We must view the evidence in the light most favorable to the trial court’s ruling and uphold that
ruling if it was within the zone of reasonable disagreement. Id. Thus, a trial court abuses its
discretion in denying a motion for new trial only when no reasonable view of the record could
support the trial court’s ruling. Id. In the present case, we cannot hold that the trial court abused

                                                  7
its discretion in denying the motion for new trial because the evidence was conclusory and
speculative as to the State’s misconduct or violation of a court order. Contrary to appellant’s
contention, the witness did not testify that the victim coordinator instructed the victim to inject
inadmissible matters into evidence. See generally Stahl v. State, 749 S.W.2d 826 (Tex. Crim.
App. 1988) (identifying reversible prosecutorial misconduct). Appellant’s fourteenth issue is
overruled.
         The judgment of the trial court is affirmed.




                                                                        TERRY McCALL
                                                                        JUSTICE


May 27, 2011
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel2 consists of: Wright, C.J.,
McCall, J., and Hill, J.3




         2
           Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.

         3
             John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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