                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00289-CR


RAJENDRA KISSOON                                                    APPELLANT

                                        V.

THE STATE OF TEXAS                                                        STATE


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          FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                I. INTRODUCTION

      Appellant Rajendra Kissoon appeals his conviction for indecency with a

child by contact. See Tex. Penal Code Ann. § 21.11(a)(1) (West 2011). In three

issues, Kissoon argues that the trial court erred by excluding testimony about the

complainant’s past sexual behavior. We will affirm.


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

      Amanda B. was born in January 1992.2         Sometime around September

1999, when Amanda was seven years old, she and her family moved into an

apartment located in Tarrant County. Kissoon, Amanda’s step-father’s cousin,

whom Amanda referred to as ―Uncle Billy,‖ lived in a nearby apartment complex.

      Kissoon had a pool behind his apartment, and Amanda and her younger

brother, and sometimes just Amanda, would go over to Kissoon’s apartment to

swim at the pool, play video games, hang out, and spend the night.        When

Amanda and her brother stayed overnight, she slept in Kissoon’s bed with him

and her brother slept on the couch.        On more than five but less than ten

occasions, when Amanda spent the night in Kissoon’s bed with him, he

―hoist[ed]‖ her up on top of him and moved her back and forth on his erect penis

until he ejaculated.3 Kissoon also made her perform oral sex on him.4

      Amanda kept the molestation a secret for years, until December 2007,

when she was a sophomore in high school. Amanda had made good grades

during her freshman year, but the following fall, she became depressed,


      2
       At trial, Amanda agreed to waive the use of a pseudonym in place of her
real name.
      3
      Both were clothed; Kissoon wore sweat pants and a T-shirt, and Amanda
wore a T-shirt and underwear.
      4
       Amanda confirmed that these things happened when she and her family
were living in the apartment that was located near Kissoon’s apartment. They
moved out of that apartment and into a house in the spring of 2001.


                                       2
communicated with her family less, lost weight, began cutting and pinching

herself, started skipping school, and lied to her mother about skipping school.

On December 18, 2007, Amanda ―gave up‖ and told her mother about the

molestation. She continued to be depressed thereafter and also learned that her

stepfather was not her biological father.

      Eventually, in May 2008, Amanda was referred to Cook Children’s Medical

Center due to concerns about suicidal ideation. The examiner concluded that

Amanda was depressed and required inpatient hospitalization.          Amanda was

transferred to Millwood Hospital, where she stayed for a week and was treated

by Dr. Rupinder Bhatia, the attending physician.

      Ultimately, in addition to indecency with a child, a grand jury indicted

Kissoon with four counts of aggravated sexual assault of a child.           At trial,

Dr. Bhatia testified that when he treated Amanda, he did not have any indication

that she was malingering and did not observe any signs of ―secondary gain‖ on

her part. Dr. Bhatia described malingering as ―faking symptoms,‖ and he agreed

that secondary gain was like ―a motive‖ to malinger.

      Among other witnesses, Kissoon called Rene Ortiz to testify. Before Ortiz

testified, Kissoon notified the trial court that he intended to elicit testimony from

Ortiz that Ortiz ―did have sex with Amanda and that on one or more occasions

she performed oral sex on him and that he is her boyfriend.‖ The State objected

that the proffered testimony was inadmissible under rule of evidence 412, and

the trial court sustained the objection. Ortiz proceeded to testify that he and


                                            3
Amanda had dated during part of the time that they attended the same high

school, that she had told him that she had been sexually abused by her ―uncle,‖

and that she had been physically abused by her stepfather. At the conclusion of

Ortiz’s testimony, but outside the presence of the jury, the trial court permitted

Kissoon to develop the testimony about Ortiz’s sexual relationship with Amanda.

Ortiz testified that he and Amanda had sent each other sexually-oriented text

messages, that she had performed oral sex on him, and that they had sex. The

trial court declined to change its earlier ruling sustaining the State’s rule 412

objection.

      A jury convicted Kissoon of the indecency offense but acquitted him of the

four aggravated-sexual-assault allegations.      The jury assessed Kissoon’s

punishment at seven years’ confinement but recommended that he be placed on

community supervision. The trial court accordingly sentenced Kissoon to seven

years’ confinement but suspended imposition of the sentence and placed him on

community supervision for ten years.

               III. SPECIFIC INSTANCES OF PAST SEXUAL BEHAVIOR

      All three of Kissoon’s issues challenge the propriety of the trial court’s

ruling excluding the evidence about Amanda’s past sexual behavior with Ortiz.

      We review a trial court’s decision to exclude evidence under an abuse of

discretion standard. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App.

2000). A trial court does not abuse its discretion as long as the decision to

exclude the evidence is within the zone of reasonable disagreement.


                                        4
Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on

reh’g).

      Rule of evidence 412 governs the admissibility of a complainant’s prior

sexual relationships with third parties in a sexual assault case. Tex. R. Evid.

412. Rule 412(b) provides in relevant part as follows:

            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:

                     ...

             (2) it is evidence:

                  (A)     that is necessary to rebut or explain scientific or
      medical evidence offered by the State;

                     ...

                     (C)    that relates to the motive or bias of the alleged
      victim; [or]
                     ...

                     (E)    that is constitutionally required to be admitted;
      and

            (3)      its probative value outweighs the danger of unfair
      prejudice.

Tex. R. Evid. 412(b).      The rationale behind the rules is that evidence of a

complainant’s

      prior sexual activity is of dubious probative value and relevance and
      is highly embarrassing and prejudicial. Often such evidence has
      been used to harass the prosecuting victim. Sponsors of these
      statutes assert that they encourage victims of sexual assault to



                                         5
      report the crimes without fear of having their past sexual history
      exposed to the public.

Allen v. State, 700 S.W.2d 924, 929 (Tex. Crim. App. 1985) (quoting Bell v.

Harrison, 670 F.2d 656, 658 (6th Cir. 1982)).

      A.    Rule 412(b)(2)(A)

      In his first issue, Kissoon argues that the trial court erred by excluding the

evidence about Amanda’s past sexual behavior with Ortiz because it was

necessary to rebut Dr. Bhatia’s testimony that Amanda was not malingering and

did not have a secondary gain. See Tex. R. Evid. 412(b)(2)(A). Kissoon directs

the court to the portion of Amanda’s testimony where she confirmed that Kissoon

was ―the only person who did these things to‖ her and states that Amanda

―denied ever having any sexual contact when she was asked about it in direct

examination.‖      [Emphasis added.]    Kissoon also points out that Amanda

(1) denied ―sexual activity‖ when she completed the medical forms at Cook

Children’s Medical Center and (2) ―lied‖ about having sex with Ortiz when she

was treated at Millwood Hospital because her medical records from there

indicated that she was not ―sexually active.‖ Kissoon’s argument founders for

several reasons.

      Assuming that Dr. Bhatia’s testimony concerned scientific or medical

evidence, Kissoon’s argument appears to improperly conflate evidence of sexual

abuse with evidence that Amanda engaged in sexual behavior or contact

unassociated with Kissoon’s molestation of her. Specifically, the record reflects



                                         6
that when Dr. Bhatia testified about the absence of malingering and secondary

gain, he was conveying his opinions about the statements that Amanda had

made to him regarding the sexual abuse of her by Kissoon; he was not opining

about the absence of malingering and secondary gain regarding any statements

that Amanda made about whether she had been sexually active.

      Indeed, immediately before the questioning about malingering, Dr. Bhatia

testified that Amanda exhibited symptoms that were associated with someone

who had been sexually abused, that it was not uncommon for outcries to occur

years after the sexual abuse happened, that he had dealt with adults who had

suffered from the effects of sexual abuse as a child, and that an adult’s memory

may not recall every detail of the sexual abuse that occurred when the adult was

a child.   Dr. Bhatia even specifically referenced the ―abuse‖ when discussing

secondary gain. This distinction between sexual abuse and sexual activity is

significant because evidence that Amanda had been sexually active with Ortiz

when she was in high school would not have rebutted Dr. Bhatia’s testimony

about the absence of malingering and secondary gain regarding Amanda’s

statements about the sexual abuse. In fact, the record contains no evidence that

Amanda ever told anyone that she had not been sexually abused.

      Alternatively, Kissoon’s argument may be that he could have rebutted

Dr. Bhatia’s testimony regarding the absence of malingering and secondary gain

in Amanda’s statements about sexual abuse had he been able to demonstrate

through Ortiz’s excluded testimony that Amanda was somehow less than


                                       7
forthright when she testified about her history of sexual activity and when she

was evaluated at Cook Children’s Medical Center and Millwood Hospital.           In

other words, the argument is that if Amanda was evasive or untruthful about one

matter (sexual activity), then maybe she was evasive or untruthful about another

matter (speaking about the sexual abuse with Dr. Bhatia). The record does not

support this argument, and to the extent that it does, the evidence was

inadmissible.

      First, it is apparent that when Amanda testified that Kissoon was ―the only

person who did these things to‖ her, she was referring to the sexual abuse of her

by Kissoon, not her participation in sexual activity or sexual contact unassociated

with the sexual abuse. [Emphasis added.] As explained already, we decline to

conflate evidence of sexual abuse with evidence that Amanda engaged in sexual

behavior or contact unassociated with Kissoon’s molestation of her.

      Kissoon claims that the medical records from Cook Children’s Medical

Center indicate that Amanda denied ―sexual activity,‖ but we are unable to locate

anything to that effect either in the exhibit or in the testimony of the individual

who examined Amanda.

      Regarding the notation in the Millwood Hospital records that Amanda was


                                       ⊖
―LM - 5/10 not sex[ually] active UCG ,‖ Dr. Bhatia explained that this meant




                                        8
Amanda’s last menstrual period was May 10, that she reported not being

sexually active, and that her urinary pregnancy test was negative. But as the

State observes, there is nothing in the medical records or in Dr. Bhatia’s

testimony about the medical records from which we can determine the context in

which the answer was given.      Kissoon did not develop the evidence on the

matter, although he questioned Amanda and could have recalled her, and we are

left to speculate about the circumstances surrounding the notation.

      Nonetheless, to the extent that the notation in the Millwood Hospital

records that Amanda was not sexually active could have been construed to mean

that Amanda ―lied‖ about having sex with Ortiz, as Kissoon urges, the connection

that Kissoon attempts to draw between this evidence and Dr. Bhatia’s testimony

regarding the absence of malingering and secondary gain in Amanda’s

statements about sexual abuse—i.e., that if Amanda was evasive or untruthful

about her sexual activity, then maybe she was evasive or untruthful when she

spoke about the sexual abuse with Dr. Bhatia—is far too tenuous to not fall within

the scope of rule 412’s general rule of exclusion. See Allen, 700 S.W.2d at 929.

At a minimum, the trial court could have reasonably concluded that the probative

value of admitting Ortiz’s testimony for that purpose would have been

outweighed by the danger of unfair prejudice to the State. See Tex. R. Evid.

412(b)(3).




                                        9
      We hold that the trial court did not abuse its discretion by excluding Ortiz’s

testimony in light of Kissoon’s rule-412(b)(2)(A) argument.       Accordingly, we

overrule Kissoon’s first issue.

      B.     Rule 412(b)(2)(C)

      In his second issue, Kissoon argues that the trial court erred by excluding

the evidence about Amanda’s past sexual behavior with Ortiz because Amanda

had a motive to lie about the sexual abuse. See Tex. R. Evid. 412(b)(2)(C).

Kissoon points out that unlike during Amanda’s freshman year when she was an

exemplary student, during her sophomore year, she made bad grades, skipped

classes, and lied to her mother, her stepfather, and the treating facilities about

her relationship with Ortiz. According to Kissoon, by ―[f]alsely claiming to be a

victim‖ of sexual abuse, Amanda was able to ―deflect her parents’ and society’s

scrutiny and continue her inappropriate behavior.‖

      To preserve a complaint for our review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Clay v. State, 361 S.W.3d 762, 765 (Tex. App.—Fort

Worth 2012, no pet.). Further, the trial court must have ruled on the request,

objection, or motion, either expressly or implicitly, or the complaining party must

have objected to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Pena

v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011). A reviewing court should


                                        10
not address the merits of an issue that has not been preserved for appeal.

Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010) (op. on reh’g);

Clay, 361 S.W.3d at 765.

      Kissoon advised the trial court that Ortiz’s testimony about Amanda’s prior

sexual behavior was admissible for the following reasons:

    ―First of all, they [the State] have opened the door. They have put
     the records in. In the direct of the treating psychiatrist, an expert at
     Millwood, those medical records specifically had questions of her as
     to whether or not she was sexually active. And so I think we’re
     entitled to rebut that.‖

    ―Second of all, I think it’s clear from the manner in which they
     questioned Amanda that they’re going to argue and/or have tried to
     create in the mind of jurors some belief that the only reason she’s
     able to describe or knows about the specific act of sexual -- oral
     sexual performance that she described is because of her experience
     with Mr. Kissoon. And I think we’re entitled to confront her and
     create the misimpression that she’s made under Crawford v.
     Washington.‖

    ―If I can develop that he knows by means other than by sexual
     contact, for example, if they talked about it or if they watched or she
     texted him references, specific references to oral sex?‖

    ―At some point I would like to -- I don’t know what his answers are to
     those, so I can’t make a proffer. But as the Court is aware of the
     previous case, there was at least one sexually explicit text that
     Amanda received in regards to oral sex. We have a witness that can
     testify to that. Yvonne, the grandmother testified about that. That
     was hearsay, so it wasn’t allowed in.

    ―The father showed the grandmother the daughter’s computer. The
     State objected and the jury didn’t hear about that. But, I mean, there
     is a good faith -- this isn’t a fishing expedition. There’s a good faith
     belief that this girl clearly had those types of communication.‖




                                        11
At no point did Kissoon urge the argument that he now raises on appeal, nor was

the argument apparent from the context of the assertions that he expressly

made. Because Kissoon raises this argument for the first time on appeal, we

hold that he failed to preserve the issue for appellate review. See Tex. R. App.

P. 33.1(a)(1). We overrule Kissoon’s second issue.

      C.    Rule 412(b)(2)(E)

      In his third point, Kissoon argues that the trial court erred by excluding the

evidence about Amanda’s past sexual behavior with Ortiz because the evidence

was constitutionally required to be admitted under the Confrontation Clause of

the Sixth Amendment and the Due Process Clause of the Fourteenth

Amendment.5 See Tex. R. Evid. 412(b)(2)(E).

      The Confrontation Clause of the Sixth Amendment provides that ―[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.‖     U.S. Const. amend. VI.      However, the right to

confront and cross-examine is not absolute and may, in appropriate cases, bow

to accommodate other legitimate interests in the criminal trial process. Allen, 700

S.W.2d at 931.     The Constitution requires only the introduction of otherwise



      5
       Kissoon’s due process argument does not contain any citations to any
relevant authorities. This portion of his third issue is therefore waived as
inadequately briefed. See Tex. R. App. P. 38.1(i); see also Rhoades v. State,
934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (―It is incumbent upon counsel to
cite specific legal authority and to provide legal argument based upon that
authority.‖).


                                        12
relevant and admissible evidence. See Hale v. State, 140 S.W.3d 381, 396 (Tex.

App.—Fort Worth 2004, pet. ref’d).

      Just like in his first issue, Kissoon directs us to the portion of Amanda’s

testimony in which she confirmed that Kissoon was ―the only person who did

these things‖ to her.   Kissoon argues that because Amanda ―lied about her

sexual history,‖ Ortiz’s testimony that he engaged in sexual activity with Amanda

should have been admitted to protect Kissoon’s rights under the Sixth

Amendment.

      Kissoon’s argument is premised upon an erroneous interpretation of an

unambiguous part of the record.      As we explained in the first issue, when

Amanda testified that Kissoon was ―the only person who did these things to‖ her,

she was referring to the acts of sexual abuse committed by Kissoon upon her;

she was not making some sort of comprehensive declaration that she had never

participated in sexual activity or sexual contact unassociated with the sexual

abuse. [Emphasis added.] Further, to the extent that Kissoon relies upon the

notation in the Millwood Hospital record to support his argument that Amanda

―lied‖ about being sexually active, we have already addressed that contention in

the first issue, and our opinion remains unchanged, even in light of Kissoon’s

Confrontation-Clause argument.

      Kissoon argues that Davis v. Alaska, 415 U.S. 308, 94 S. Ct. 1105 (1974),

supports his argument.    There, the trial court prohibited the defendant from

questioning a State’s witness about being on probation when the witness


                                       13
identified the defendant. Id. at 309–11, 94 S. Ct. at 1107. The Supreme Court

held that the defendant should have been permitted to question the witness

about his status as a probationer for the limited purpose of showing that the

witness was potentially biased in making the identification of the defendant. Id.

at 316–17, 94 S. Ct. at 1110–11. Davis is distinguishable because, unlike in this

case, the petitioner there did not misconstrue the portion of the record upon

which his argument was based, and the Supreme Court concluded that the

probative value of admitting the evidence outweighed the State’s interest in

protecting the anonymity of the probationer as a juvenile offender. Davis also did

not involve the admissibility of a sexual abuse victim’s prior sexual history.

      We hold that the trial court did not abuse its discretion by excluding Ortiz’s

testimony, and we overrule Kissoon’s third issue.

                                  IV. CONCLUSION

      Having overruled Kissoon’s three issues, we affirm the trial court’s

judgment.



                                              BILL MEIER
                                              JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DAUPHINOT, J., dissents without opinion.

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

DELIVERED: August 29, 2013


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