      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00529-CR
                                       NO. 03-17-00530-CR



                                 James Lee Vanhoose, Appellant

                                                 v.

                                   The State of Texas, Appellee


   FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
  NOS. CR2015-587 & CR2015-586, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                In trial court cause number CR2015-586, a jury convicted appellant James Lee

Vanhoose of the offenses of continuous sexual abuse of a child and indecency with a child by

contact and assessed punishment at 50 and 20 years’ imprisonment, respectively, for each offense.

See Tex. Penal Code §§ 21.02, 21.11(a)(1). In trial court cause number CR2015-587, the jury

convicted Vanhoose of two counts of the offense of obstruction or retaliation and assessed

punishment at two years’ imprisonment for each count.1 See id. § 36.06(c). On appeal, Vanhoose

asserts that the district court abused its discretion in excluding defensive evidence related to the

sexual abuse allegations.2 We will affirm the judgments of conviction.



       1
           The causes were consolidated in the court below for trial purposes.
       2
         In his brief, Vanhoose concedes that his issue on appeal “affect[s] only the sexual [abuse]
accusations.” Thus, he does not challenge his convictions in CR2015-587.
                                         BACKGROUND

               The complainant in the case, C.L., was Vanhoose’s stepdaughter. C.L., who was

fourteen years old at the time of trial, testified that when she was seven or eight years old, Vanhoose

began sexually abusing her. The abuse, which occurred over a period of approximately five years,

included multiple incidents of Vanhoose penetrating C.L.’s sexual organ with his sexual organ,

touching her breasts and genitals, and performing oral sex on her. In 2015, when C.L. was twelve

years old, she told her best friend, E.M., E.M.’s sister, and E.M.’s mother that Vanhoose was

sexually abusing her. Shortly thereafter, the abuse was reported to Child Protective Services (CPS).

C.L. was subsequently interviewed by Megan Smith, a forensic interviewer with the Children’s

Advocacy Center of Comal County, and she provided Smith with a detailed description of the abuse.

C.L. testified that, shortly after CPS became involved in the case, Vanhoose “apologized for

everything that he had done to me in previous years and he said he never meant to hurt me, never

meant for it to be this way.” Vanhoose subsequently left Texas and was later arrested in Arizona.

Following his arrest, Vanhoose provided a statement to the police in which he denied the abuse

but claimed that C.L. would sleep in his bed on multiple occasions and “grind on him” while he

slept. This “grinding,” as described by Vanhoose, was sexual in nature and included an incident in

which C.L. was not wearing underwear and was on top of Vanhoose while his sexual organ was

exposed to her. Vanhoose claimed that he was “drunk” when these incidents occurred.

               After considering this and other evidence, which we discuss in more detail below,

the jury convicted Vanhoose of the charged offenses and assessed punishment as noted above.

The district court rendered judgment on the jury’s verdicts. These appeals followed.



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                                            DISCUSSION

                During trial, the district court excluded evidence that Vanhoose argued would be

favorable to his defense, specifically: (1) testimony tending to show that Vanhoose had prohibited

C.L. from visiting the homes of her best friend, E.M., and an adult neighbor, Daniel Rios; (2) text

messages exchanged between C.L. and Rios; and (3) text messages that were exchanged between

C.L. and her friends. In his sole issue on appeal, Vanhoose asserts that the district court abused its

discretion in excluding this evidence.


Standard of Review

                We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Sandoval v. State,

409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). An abuse of discretion does not occur

unless the trial court acts “arbitrarily or unreasonably” or “without reference to any guiding rules and

principles.” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State,

810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial court’s ruling

unless it “falls outside the zone of reasonable disagreement.” Johnson v. State, 490 S.W.3d 895, 908

(Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83 (“Before a reviewing court may reverse the

trial court’s decision, ‘it must find the trial court’s ruling was so clearly wrong as to lie outside the

zone within which reasonable people might disagree.’” (quoting Taylor v. State, 268 S.W.3d 571,

579 (Tex. Crim. App. 2008))). An evidentiary ruling will be upheld if it is correct on any theory of

law applicable to the case. Henley, 493 S.W.3d at 93; Sandoval, 409 S.W.3d at 297.




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Evidence of restrictions that Vanhoose had placed on C.L.

                C.L.’s best friend, E.M., and her best friend’s sister, M.M., lived in the same

neighborhood as C.L. Defense counsel presented evidence tending to show that C.L.’s mother did

not want C.L. spending time with the girls or their family, and counsel attempted to present similar

evidence tending to show that Vanhoose had forbidden C.L. from visiting E.M.’s home and also the

home of Daniel Rios, an adult neighbor. However, when defense counsel attempted to ask C.L.,

“What was [Vanhoose’s] opinion of you going over” to the girls’ house, the State objected on the

basis of hearsay. In response, defense counsel asserted that the testimony was not offered to prove

the truth of the matter asserted but to show “the relationship between [C.L.] and [Vanhoose] at

the time all of this was occurring.” The district court disagreed, explaining to defense counsel,

“That may be the intent as to where the question is intended to go and what it’s supposed to

represent, but it’s still being offered for the purpose of him telling her not to go, so it’s the truth of

the matter being asserted by the statement.” The district court then sustained the State’s objection

to the evidence. Later, defense counsel also attempted to ask C.L., “Did [Vanhoose] ever tell you

to stay away from [Rios’s] house?” The State again objected on the basis of hearsay, and the district

court again sustained the objection.

                We cannot conclude that the exclusion of this testimony as hearsay was an abuse of

discretion. Hearsay is a statement, other than one made by the declarant while testifying at trial, that

is offered to prove the truth of the matter asserted in the statement. Tex. R. Evid. 801(d). “Matter

asserted” means “any matter a declarant explicitly asserts” and “any matter implied by a statement,




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if the probative value of the statement as offered flows from the declarant’s belief about the matter.”

Tex. R. Evid. 801(c).

                Here, the “matter asserted” by the defense was that Vanhoose had forbidden C.L.

from visiting E.M. and Rios. Defense counsel was attempting to elicit testimony that Vanhoose

had made statements to that effect. Thus, it would not have been outside the zone of reasonable

disagreement for the district court to conclude that C.L.’s testimony was being offered to prove the

truth of the matter asserted—that Vanhoose had forbidden C.L. from visiting E.M. and Rios. For

that reason, the district court did not abuse its discretion in excluding the testimony as hearsay.3 See

Tex. R. Evid. 801, 802.


Text messages exchanged between C.L. and Rios

                Vanhoose also offered into evidence Defense Exhibit 2, a series of text messages that

were exchanged between C.L. and Rios, her adult next-door neighbor, in March and April 2015,

shortly before C.L. made her outcry. Vanhoose claimed that the texts were necessary for his defense

and admissible to show that there might have been “a possible alternate instigator or offender” in




       3
           For the first time on appeal, Vanhoose asserts that even if C.L.’s testimony was
inadmissible hearsay, its exclusion violated his constitutional rights to present a complete defense
and confront the witnesses against him. See U.S. Const. amend. VI; Hammer v. State, 296 S.W.3d 555,
561 (Tex. Crim. App. 2009). However, Vanhoose failed to raise this complaint in the court below.
The Court of Criminal Appeals has held that to preserve error on constitutional grounds, the
defendant must make a sufficiently specific objection on that basis so that the trial court has an
opportunity to consider that objection in its ruling. See Anderson v. State, 301 S.W.3d 276, 280
(Tex. Crim. App. 2009); Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005). Because
Vanhoose failed to give the district court that opportunity, he has not preserved that complaint
for our review. See Reyna, 168 S.W.3d at 179; see also Tex. R. App. P. 33.1(a); Alford v. State,
495 S.W.3d 63, 66 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).

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the case and that the police had mistakenly made Vanhoose “the center of the investigation from

the very beginning,” without conducting “a serious investigation of alternate suspects.” Vanhoose

further argued that the texts were admissible to show a possible motive for C.L. to “make up a story”

or “fabricate things” against her stepfather. The State argued in response that the evidence was more

prejudicial than probative. See Tex. R. Evid. 403. The district court agreed and excluded the

evidence on that basis.

               Rule 403 provides that the trial court “may exclude relevant evidence if its probative

value is substantially outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative

evidence.” Tex. R. Evid. 403. “In weighing probative value against Rule 403 counterfactors, courts

must be sensitive to the special problems presented by ‘alternative perpetrator’ evidence.” Wiley v.

State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002). “Although a defendant obviously has a right

to attempt to establish his innocence by showing that someone else committed the crime, he still

must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on

its own or in combination with other evidence in the record, to show a nexus between the crime

charged and the alleged ‘alternative perpetrator.’” Id. “It is not sufficient for a defendant merely to

offer up unsupported speculation that another person may have done the crime.” Id. at 407. “Such

speculative blaming intensifies the grave risk of jury confusion, and it invites the jury to render its

findings based on emotion or prejudice.” Id.

               In this case, it would not have been outside the zone of reasonable disagreement for

the district court to find that the balance of Rule 403 factors weighed in favor of excluding the



                                                  6
evidence. The text messages were unquestionably inappropriate and disturbing. In them, Rios

discusses his romantic feelings toward C.L., calls her names such as “baby” and “my love,” and

discusses his desire to “kiss” and “hug” her. In one text, Rios even mentions “holding” C.L.

However, none of the messages tend to show that Rios had sexually assaulted or engaged in sexual

contact with C.L. at any point in time. Also, even if such an act could be inferred from the messages,

Vanhoose was accused of sexually abusing C.L. on multiple occasions over a period of several years.

There is no indication in the texts that Rios could have been the perpetrator of the abuse alleged in

the indictment. In both her trial testimony and in her interview with CPS, C.L. had identified

Vanhoose as the sole perpetrator of that abuse, and there is no contrary evidence in the record that,

when combined with the text messages, could support a finding that an alternative perpetrator was

responsible for the offenses that C.L. had accused Vanhoose of committing. See, e.g., Ex parte

Huddlestun, 505 S.W.3d 646, 660–61 (Tex. App.—Texarkana 2016, pet. ref’d) (explaining that

“the alternative perpetrator defense typically arises in ‘who done it’ cases where the complaining

witness does not know [her] attacker” or is “unsure” of assailant’s identity, not in cases where

victim has pre-existing relationship with assailant); Martinez v. State, 212 S.W.3d 411, 424 (Tex.

App.—Austin 2006, pet. ref’d) (concluding that trial court did not abuse its discretion in excluding

evidence that victim’s brother might have inappropriately touched and hugged victim because any

nexus between brother’s actions and charged offenses was “both meager and speculative”). In the

absence of any evidence showing the required nexus between Rios and the specific crimes charged,

the district court would not have abused its discretion in finding that the probative value of the text

messages was outweighed by their prejudicial effect. Because of the disturbing nature of the texts,



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the district court could have reasonably found that they would have a strong tendency to distract

the jury from the central issue before it—whether Vanhoose had sexually abused C.L. as she had

claimed—and shift the jury’s focus to Rios and his relationship with C.L., even though the evidence

had no tendency to connect Rios to the charged offenses.

               Finally, to the extent that the text messages might have had some tendency to show

that C.L. had a motive to fabricate her allegations against Vanhoose, the district court would not

have abused its discretion in finding that its probative value was substantially outweighed by unfair

prejudice under Rule 403. As the district court observed, the text messages were largely “one-sided”

conversations written by Rios to C.L. C.L. did not respond to many of Rios’s texts, and when she

did, her replies tended to be brief and vague in nature and thus conveyed little, if any, information

regarding her state of mind and motivations around the time of her outcry. For these reasons, the

district court did not abuse its discretion in refusing to admit the text messages, and the exclusion

of such “marginally relevant” and “highly speculative” evidence did not violate Vanhoose’s

constitutional right to present his defense. See Wiley, 74 S.W.3d at 407–08; Huddlestun, 505 S.W.3d

at 661–62; Ruiz v. State, 272 S.W.3d 819, 830 (Tex. App.—Austin 2008, no pet.); Martinez,

212 S.W.3d at 424; Michaelwicz v. State, 186 S.W.3d 601, 616–19 (Tex. App.—Austin 2006,

pet. ref’d).


Text messages exchanged between C.L. and her friends

               During trial, CPS witnesses testified that when they spoke with C.L., she was

“demure,” “withdrawn,” “quiet,” and “shy.” Megan Smith, the forensic interviewer, also testified

that C.L. was uncomfortable discussing or describing sexual anatomy and “had a hard time even

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saying the word porno.” Vanhoose characterized this and other testimony as an attempt by the State

to present a “false impression” of C.L. as “sexually naive.” In an effort to counter that portrayal,

Vanhoose offered into evidence Defense Exhibit 1, a series of text messages exchanged between

C.L. and her friends and acquaintances, many of which discussed matters of a sexual nature. The

State objected, arguing that the texts were inadmissible evidence of the victim’s past sexual

behavior, and the district court sustained the State’s objection.

               Specific instances of a victim’s past sexual behavior is generally inadmissible at trial.

See Tex. R. Evid. 412(a)(2). It is admissible only if the probative value of the evidence outweighs

the danger of unfair prejudice and the evidence: (1) is necessary to rebut or explain scientific or

medical evidence offered by the prosecutor; (2) concerns past sexual behavior with the defendant

and is offered by the defendant to prove consent; (3) relates to the victim’s motive or bias; (4) is an

admissible criminal conviction under Rule 609; or (5) is constitutionally required to be admitted.

Tex. R. Evid. 412(b).

               Vanhoose argued at trial that the evidence was constitutionally required to be

admitted because the exclusion of evidence showing “an alternative basis for a child victim’s

knowledge of sexual matters” implicates both the Sixth Amendment right of confrontation and

the Fourteenth Amendment due process right to a fair trial. See U.S. Const. amends. VI, XIV;

Hale v. State, 140 S.W.3d 381, 396 (Tex. App.—Fort Worth 2004, pet. ref’d). “The Constitution

requires, however, only the introduction of otherwise relevant and admissible evidence.” Hale,

140 S.W.3d at 396 (citing United States v. Nixon, 418 U.S. 683, 711 (1974)). “Thus, before

evidence of an alleged victim’s sexual behavior may be admitted under rule 412(b)(2)(E), the



                                                  9
defendant must first establish the relevancy of the evidence to a material issue in the case.” Id. “If

the evidence is not relevant, it is not admissible.” Id. (citing Tex. R. Evid. 402). “To show the

relevancy of a child victim’s prior sexual conduct as an alternate source of sexual knowledge, the

defendant must establish that the prior acts clearly occurred and that the acts so closely resembled

those of the present case that they could explain the victim’s knowledge about the sexual matters

in question.” Id.

                Here, the district court would not have abused its discretion in finding that neither

requirement was satisfied. The text messages consisted of sex talk between C.L. and a boy, attempts

by that boy to exchange sexual photos with C.L., and C.L.’s repeated rejection of those requests.

There were also discussions between C.L. and others referring to drug use, sexual history, and

claims by C.L. that she had been physically (not sexually) abused in the past. However, there is

nothing in the record to establish that the sexual acts described in the texts “clearly occurred” or that

they “so closely resembled those of the present case that they could explain [C.L.’s] knowledge

about the sexual matters in question.” Thus, it would not be outside the zone of reasonable

disagreement for the district court to find that the text messages were not relevant to a material issue

in the case. See Hernandez v. State, 327 S.W.3d 200, 206 (Tex. App.—San Antonio 2010, pet.

ref’d); Hale, 140 S.W.3d at 396. Moreover, to the extent that the text messages might have had

some marginal relevance to the issue of C.L.’s sexual knowledge, the district court would not have

abused its discretion in finding that the probative value of the evidence was outweighed by the

danger of unfair prejudice. The texts contained numerous references to various extraneous matters,

both sexual and non-sexual in nature, that had nothing to do with the facts of the case but could



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serve only to unfairly prejudice the jury against C.L. and distract the jury from its central task of

determining the guilt or innocence of Vanhoose. See Robisheaux v. State, 483 S.W.3d 205, 224–25

(Tex. App.—Austin 2016, pet. ref’d). For these reasons, we cannot conclude that the district court

abused its discretion in excluding the text messages.


                                         CONCLUSION

               Having found no abuse of discretion in the district court’s evidentiary rulings, we

overrule Vanhoose’s sole issue on appeal. We affirm the district court’s judgments of conviction.



                                              ___________________________________________

                                              Gisela D. Triana, Justice

Before Chief Justice Rose, Justices Triana and Kelly

Affirmed

Filed: February 27, 2019

Do Not Publish




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