AFFIRMED and Opinion Filed November 30, 2018




                                         S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-00016-CR
                                      No. 05-18-00017-CR

                          VICTOR MONROE COLTER, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the 204th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. F-16-31334-Q


                             MEMORANDUM OPINION
                        Before Justices Stoddart, Whitehill, and Boatright
                                  Opinion by Justice Whitehill

       A jury convicted appellant Victor Monroe Colter of two counts of aggravated sexual assault

of a child. On appeal he raises one issue, complaining that the trial court erred by precluding him

from presenting evidence that the complainant made a false sexual molestation accusation against

someone else. We conclude that the trial court did not abuse its discretion because the proffered

evidence did not create an inference of bias, prejudice, or motive. We therefore affirm.

                                        I. BACKGROUND

A.     Procedural History

       By two indictments, appellant was accused of sexually assaulting his great niece J.D., a

child younger than fourteen, on or about July 15 and July 30, 2014.
       Appellant pled not guilty, and the issue of guilt was tried before a jury. The jury found

him guilty of both crimes.

       Appellant and the State agreed that (i) he would be sentenced to ten years in prison for each

offense and (ii) he would retain the right to appeal. The trial judge sentenced appellant pursuant

to the agreement. The sentences run concurrently.

       Appellant timely appealed the convictions.

B.     Facts

       Trial evidence supported the following facts:

       In the summer of 2014, appellant was in between jobs and lived with his older sister (Sister)

for a few months. Twelve-year-old J.D. and her two younger sisters, who were great nieces of

both Sister and appellant, were living with Sister at the time because their mother could not care

for them.

       J.D. testified about multiple molestation incidents involving appellant. She said that on

one occasion she was in the garage with appellant when he told her to pull her pants down. She

complied, and he touched her “[b]ehind” and her vagina with his “middle part.” Then they heard

J.D.’s cousins and sisters playing outside, and appellant stood up and “put it back in his pants.”

Then they both walked out of the garage.

       J.D. testified that on a later occasion, when it was nighttime, she took the trash out and

appellant followed her outside. While they were outside, appellant told J.D to pull her pants down,

and she complied. He tried to put his “middle part” in her vagina, and it touched the skin of her

vagina. Afterwards, she went inside and took a shower. Later that night, appellant called J.D. into

his bedroom, locked the door, and put his penis in her mouth.

       Appellant moved out of Sister’s house in August 2014.




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       J.D. made an outcry to Sister in July 2016. Sister called the police. This prosecution

followed.

                                           II. ANALYSIS

A.     Issue Presented: Did the trial court abuse its discretion by excluding evidence that
       J.D. previously made a false outcry of sexual abuse against someone else?

       Appellant’s sole issue argues that the trial court abused its discretion by refusing to allow

him to call J.D. back to the stand to develop evidence that she once made a false accusation of

sexual molestation against someone else. Appellant argues that the evidence was admissible

because: (i) the evidence was a prior inconsistent statement admissible under Texas Rule of

Evidence 613 and (ii) appellant had a constitutional right to cross-examine J.D. about the false

accusation to impeach her credibility and show bias or motive to falsely accuse him.

       1.      Standard of Review

       We review an evidentiary ruling for abuse of discretion. Weatherred v. State, 15 S.W.3d

540, 542 (Tex. Crim. App. 2000). We uphold the ruling if it was within the zone of reasonable

disagreement. Id. We review the ruling in light of what was before the trial court at the time it

ruled. Id.

       2.      Did appellant preserve error?

       The State argues that we should overrule appellant’s issue (in whole or in part) because he

failed to preserve error. Specifically, the State argues that (i) appellant’s entire issue is forfeited

because the trial court did not rule on appellant’s proffer and alternatively (ii) appellant’s Rule 613

argument on appeal is forfeited because it does not comport with his trial court arguments. We

reject the State’s first argument but agree with its second.

               a.      Applicable Rules

       To preserve a complaint that the trial court erroneously excluded evidence, a party must

specifically articulate the legal basis that makes the evidence admissible. Golliday v. State, No.

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PD-0812-17, 2018 WL 5624404, at *4 (Tex. Crim. App. Oct. 31, 2018); Reyna v. State, 168

S.W.3d 173, 179–80 (Tex. Crim. App. 2005); cf. TEX. R. APP. P. 33.1(a)(1)(A) (complaining party

must state the grounds for the desired ruling unless the specific grounds were apparent from the

context). Only arguments made in the trial court are preserved for appeal. See Thomas v. State,

505 S.W.3d 916, 924 (Tex. Crim. App. 2016) (“If a trial court objection does not comport with

arguments on appeal, error has not been preserved.”) (footnote omitted).

       The party must also obtain a ruling, either express or implicit, or object to the court’s refusal

to rule. TEX. R. APP. P. 33.1(a)(2).

       Additionally, the party must make an offer of proof unless the evidence’s substance was

apparent from the context. TEX. R. EVID. 103(a)(2). The offer of proof may consist of a concise

statement by counsel, or it may be presented in question-and-answer form. Mays v. State, 285

S.W.3d 884, 889 (Tex. Crim. App. 2009). If counsel opts to make a statement, the proffer must

(i) include a reasonably specific summary of the evidence offered and (ii) state the evidence’s

relevance unless the relevance is apparent. Id. at 889–90.

               b.      The Record

       During appellant’s case, the jury was excused, and Sister testified that (i) appellant’s

daughter V. told Sister that J.D. had told V. that “something had went on” between J.D. and a man

named R.M. and (ii) when Sister asked J.D. about it, J.D. admitted she told V. that but she also

said that it wasn’t true and she said it only because V. “kept hounding her about it.”

       Also outside the jury’s presence, V. testified that during the spring of 2014, J.D. told her

that R.M. had “touched her in places he wasn’t supposed to.” V. told Sister about the outcry.

       After Sister and V. testified, appellant asked to call J.D. back to the stand so that he could

ask her whether she made an allegation against R.M. and whether it was true or false. He argued,

“[T]his isn’t character evidence, Your Honor. It’s impeachment of her credibility, or it’s proof


                                                 –4–
that she’s made a false statement.” The State objected based on Rule 608 and the hearsay rule.

After further argument, the trial judge said, “I don’t think you can call [J.D.] for that purpose.”

Then the proceedings went off the record. When the proceedings resumed on the record, the judge

instructed appellant to “make [a] bill of exceptions.” Appellant then said the following:

       If I would call the complaining witness back to the stand in this case and ask her if
       [R.M.] had ever molested her, she would say no, and then I would ask her if she
       made an allegation in 2014 to [V.] that [R.M.] had molested her, she would say,
       yes. And then I would ask her, if at the time she made that accusation that allegation
       was false, and she would say yes.

       And we think that the failure of the Court to allow this testimony into evidence at
       this stage of the trial denies my client his right to effectively cross-examine a
       witness against him under Davis versus Alaska and his right to confrontation under
       the Sixth Amendment to the Constitution.

After a short exchange with the trial judge, appellant continued:

       APPELLANT: All right. I would like to add to the previous basis for the objection
       to the exclusion of that testimony, the Court of Criminal Appeals opinion in
       Hammer versus State, and the footnote 30 thereof which refers to the doctrine of
       chances, and the—I'll spell this for you, 24 Quinnipiac, that's, Q-U-I-N-N-I-P-I-A-
       C, Law Review.

       THE REPORTER: I’m sorry. Can you—a little bit slower.

       APPELLANT: Q-U-I-N-N-I-P-I-A-C, Law Review 609, 2006, which—which the
       Court of Criminal Appeals incorporated in their appendix as a long discussion about
       the admissibility of false accusations of sex abuse.

       THE COURT: That’s it?

       APPELLANT: That’s it.

       THE COURT: Okay. You want to bring the jury in, Ms. Johnson?

Trial then resumed before the jury.

               c.      Applying the Law to the Facts

       First, we reject the State’s contention that the trial court did not rule on appellant’s proffer.

Although the court did not expressly sustain the State’s objections or deny appellant’s request to

recall J.D. for examination, the court heard the parties’ arguments, went off the record, and


                                                 –5–
resumed proceedings on the record by telling appellant to make his “bill of exceptions.”1 Appellant

made an offer of proof and stated additional reasons for the evidence’s admissibility.2 The court

acknowledged the reasons and ordered the trial to resume before the jury, which occurred without

the proffered testimony’s being presented before the jury. Under the circumstances, we conclude

that the trial court implicitly ruled that appellant’s proffered evidence was inadmissible when it

told appellant to make a “bill of exceptions.” See TEX. R. EVID. 103(a)(2) (offer of proof is

necessary to preserve error “if the ruling excludes evidence”); Jones v. State, 540 S.W.3d 16, 24

(Tex. App.—Houston [1st Dist.] Aug. 1, 2017, pet. granted) (an offer of proof is necessarily made

after the trial court has already ruled that evidence is inadmissible). Furthermore, this record shows

that appellant preserved his Confrontation Clause sub-issue.

           Second, we agree with the State that appellant did not preserve his appellate argument that

the proffered evidence was admissible under Texas Rule of Evidence 613 as a prior inconsistent

statement. Appellant never mentioned Rule 613 or argued that J.D.’s contradictory statements

about R.M. were admissible because they were inconsistent with her trial testimony.                                                         See

Covarrubias v. State, No. 08-11-00176-CR, 2013 WL 557177, at *3 (Tex. App.—El Paso Feb. 13,

2013, no pet.) (not designated for publication) (“A ‘prior inconsistent statement’ is a prior

statement made by a witness that is inconsistent with that witness’s testimony at trial.”).

Accordingly, we will not consider appellant’s argument that the proffered evidence was admissible

under Rule 613.




     1
       An offer of proof was formerly known as an informal bill of exception. In re Estate of Miller, 243 S.W.3d 831, 837 (Tex. App.—Dallas
2008, no pet.). The terms “offer of proof” and “bill of exception” are often used interchangeably. Ethridge v. State, No. 01-10-00027-CR, 2011
WL 2502542, at *3 (Tex. App.—Houston [1st Dist.] June 23, 2011, no pet.) (mem. op., not designated for publication).
      2
        Appellant asserts without explanation that the trial court denied him the opportunity to present evidence in his “Bill of Exceptions.” The
record does not support this assertion. In any event, the assertion is not adequately briefed to present anything for review. See TEX. R. APP. P.
38.1(i).

                                                                      –6–
       3.      Did the trial court abuse its discretion by excluding the evidence in violation
               of appellant’s Confrontation Clause rights?

       We now consider whether appellant had a constitutional right to cross-examine J.D. about

the false accusation to impeach her credibility or to show bias or motive to falsely accuse him. We

conclude that the trial court did not abuse its discretion by rejecting appellant’s argument.

               a.      Applicable Law

       The Sixth Amendment right to confront witnesses includes the right to cross-examine them

to attack their general credibility and to show their possible bias, self-interest, or motives in

testifying. Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (citing Davis v. Alaska,

415 U.S. 308, 316 (1974)). However, the right is not unqualified, and the trial court has wide

discretion in limiting the scope and extent of cross-examination. Id. Ordinarily, evidentiary rules

limiting the admissibility of evidence do not conflict with the Sixth Amendment. Id.

       Generally, a witness may be cross-examined on any relevant matter, including credibility.

TEX. R. EVID. 611(b). However, Rule 608(b) bars cross-examination about specific instances of

conduct, other than criminal convictions as provided in Rule 609(a), for the purpose of attacking

the witness’s character for truthfulness. TEX. R. EVID. 608(b).

       When applying the Sixth Amendment, courts have distinguished attacks on a witness’s

general credibility from attacks that reveal the witness’s possible biases, prejudices, or ulterior

motives that relate directly to the issues or people in the particular case. See, e.g., Hammer, 296

S.W.3d at 562–63; Terry v. State, No. 05-12-00279-CR, 2013 WL 1838646, at *4 (Tex. App.—

Dallas Mar. 26, 2013, pet. ref’d) (not designated for publication). The defendant does not have an

absolute right to impeach a witness’s general credibility, but the Sixth Amendment is offended if

an evidentiary rule bars a defendant from cross-examining a witness about possible biases,

prejudices, and motives to such an extent that he could not present a vital defensive theory.

Hammer, 296 S.W.3d at 562–63; Terry, 2013 WL 1838646, at *4.

                                                –7–
       Hammer and Terry illustrate these principles. In Hammer, the defendant was being

prosecuted for indecency with a child (his daughter) and unsuccessfully sought to introduce

evidence that the complainant had made a false sexual assault accusation against someone else.

296 S.W.3d at 558–59. The court of criminal appeals held that the trial court erred by excluding

the evidence because on the case’s specific facts the false accusation was strong evidence that the

complainant had a motive to falsely accuse her father. Id. at 567. Specifically, the complainant

made the false accusation against “Ignacio” after she had actually had consensual intercourse with

her boyfriend Anthony, whom her father did not approve of, and after her father took her to the

hospital for a sexual assault examination. She was so upset that she threatened to commit suicide

shortly thereafter. According to the court of criminal appeals, these facts showed that the

complainant (i) had a motive to falsely accuse her father and (ii) was not above making a false

accusation to keep her father from learning the truth and punishing her. Id.

       In Terry, by contrast, a sexual-assault defendant unsuccessfully sought to introduce

evidence that the complainant had lied to her mother about a wholly independent “sexting”

incident involving her and a schoolmate. 2013 WL 1838646, at *1, *4. We held that the trial court

did not abuse its discretion by excluding the evidence of the complainant’s lie because the lie was

not an accusation, did not involve the defendant or the allegations against him, and did not show

that the complainant had any bias, prejudice, or ulterior motive to accuse the defendant. Id. at *4.

               b.      Applying the Law to the Facts

       We hold that the trial court did not abuse its discretion by excluding the proffered evidence.

Appellant’s arguments that the evidence was admissible to impeach her credibility and to show

bias, prejudice, or an ulterior motive to testify against him are not persuasive.

       First, appellant’s argument that the evidence was admissible to impeach J.D. credibility

conflicts with Rule 608(b)’s prohibition of such evidence.          Hammer makes clear that the


                                                 –8–
Confrontation Clause does not compel the admission of prior false accusations offered simply to

attack a complainant’s general credibility. See 296 S.W.3d at 564–65 & n.26.

       Second, although appellant repeatedly urges that the proffered evidence would have shown

J.D.’s bias against appellant or motive to accuse him, he does not explain how this is so. The

record indicates that (i) in the spring of 2014, J.D. made a vague outcry to V. that R.M. “touched

her in places he wasn’t supposed to” and (ii) J.D. later told Sister that her outcry wasn’t true and

she said it only to make V. stop hounding her about it. Nothing about this evidence suggests J.D.

was biased or prejudiced against appellant or had an ulterior motive to make a false accusation

against him.

       Because the proffered evidence did not create an inference of bias, prejudice, or motive,

the Confrontation Clause did not compel the trial court to admit the evidence. See Solis v. State,

No. 13-14-00633-CR, 2016 WL 872677, at *3 (Tex. App.—Corpus Christi–Edinburg Feb. 18,

2016, no pet.) (mem. op., not designated for publication) (trial court permissibly excluded

complainant’s past rape allegation that did not tend to show motive or bias in defendant’s case);

Chitwood v. State, 350 S.W.3d 746, 748 (Tex. App.—Amarillo 2011, no pet.) (same).

       Accordingly, the trial court acted within the zone of reasonable disagreement in ruling that

the proffered testimony was inadmissible and did not abuse its discretion.

B.     Conclusion

       For the foregoing reasons, we overrule appellant’s sole issue.




                                                –9–
                                      III. DISPOSITION

       We affirm the trial court’s judgments.




                                                  /Bill Whitehill/
                                                  BILL WHITEHILL
                                                  JUSTICE

Do Not Publish
TEX. R. APP. P. 47.2(b)
180016F.U05




                                                –10–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

VICTOR MONROE COLTER, Appellant                   On Appeal from the 204th Judicial District
                                                  Court, Dallas County, Texas
No. 05-18-00016-CR        V.                      Trial Court Cause No. F-16-31334-Q.
                                                  Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee                      Justices Stoddart and Boatright
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered November 30, 2018




                                           –11–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                      JUDGMENT

 VICTOR MONROE COLTER, Appellant                  On Appeal from the 204th Judicial District
                                                  Court, Dallas County, Texas
 No. 05-18-00017-CR       V.                      Trial Court Cause No. F-16-31335-Q.
                                                  Opinion delivered by Justice Whitehill.
 THE STATE OF TEXAS, Appellee                     Justices Stoddart and Boatright
                                                  participating.

      Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered November 30, 2018.




                                           –12–
