                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00416-CR


JOSHUA GOLLIDAY                                                   APPELLANT

                                         V.

THE STATE OF TEXAS                                                      STATE


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           FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY
                       TRIAL COURT NO. 1379815D

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                           MEMORANDUM OPINION1

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      A jury convicted Appellant Joshua Golliday of sexual assault and assessed

his punishment at two years’ confinement, recommending that the imposition of

the sentence be suspended and that Appellant be placed on community

supervision.     The trial court sentenced Appellant to two years’ confinement,




      1
          See Tex. R. App. P. 47.4.
suspended imposition of his sentence, and placed him on community supervision

for seven years.

      Appellant brings five points on appeal, complaining of limitations on his

right of cross-examination, limitations on his right to offer character evidence,

prosecuting counsel’s improper comment on his decision not to testify, and the

cumulative effect of the errors.     Because the trial court reversibly erred in

preventing Appellant from presenting his defense by improperly limiting his right

to cross-examine witnesses concerning the complainant’s ability accurately to

understand and to recall the events of the evening, we reverse the trial court’s

judgment and remand this cause to the trial court.

Brief Facts

      Appellant’s brother and the complainant were both tenants in the Depot

Apartments. In the late evening of January 4, 2013, Appellant, his brother, two of

their male friends, and the complainant were just outside or in the complainant’s

apartment. The men and the complainant had just met. Appellant’s brother went

home first, and then another friend also left. Eventually, the remaining friend left,

and Appellant drove the complainant to get some cigarettes. She also decided to

pick up a movie from Red Box. When the complainant and Appellant returned to

her apartment, she invited him in to watch the movie. They began to make out,

and here the stories diverge.

      The complainant said that Appellant had sexual intercourse with her

without her consent. She called 911 and told the 911 operator that Appellant ran


                                         2
as soon as she called the police. She followed him out of the apartment and

chased him while speaking on her phone to the 911 operator.             The police

responded to the call, and the complainant went to the hospital, where she met

with a sexual assault nurse examiner (SANE).             A detective interviewed

Appellant’s brother, and Appellant was eventually arrested and charged with

sexually assaulting the complainant.

Limitation of Cross-Examination of the Complainant and the SANE

      In his first two points, Appellant argues that the trial court’s denial of his

right to cross-examine the complainant and the SANE was a violation of his

rights under the Confrontation and Due Process clauses of the state and federal

constitutions.   The complainant testified before the jury that she had been

drinking that night. Appellant attempted to offer evidence that shortly after the

date of the alleged assault, she was treated at Millwood. Outside the presence

of the jury, the complainant testified that she knew that both the State and

Appellant’s counsel had her lengthy records from Millwood. She said that it was

possible that she had admitted to the staff at Millwood that she had not accepted

that she had been raped. The complainant told Millwood staff that she was “a

giant problem to everyone” and that she had had a panic attack and had taken

Xanax to cope.     She told the SANE that she had herpes and suffered from

anxiety. The complainant also told the SANE that she was on medication at the

time of the alleged assault. The complainant testified in the voir dire hearing that




                                         3
she is a recovering alcoholic and that she “drink[s] alcohol with everything,”

including Zoloft.

      Appellant’s counsel stated,

      Judge, we would submit that all of this testimony is relevant and
      should come before the jury so the jury can get the whole picture of
      the situation. So we’re offering—we’d like to ask these questions in
      front of the jury.

      The prosecutor’s objections to hearsay and relevancy and under rule

404 were sustained, and the jury was not allowed to hear any of this evidence.

Appellant clarified the trial court’s ruling, asking if the trial court was prohibiting

the defense from going into any of the matters raised in the offer of proof. The

trial court responded, “Correct,” and Appellant excepted to the trial court’s ruling.

      When the SANE testified, Appellant made another offer of proof outside

the presence of the jury. The SANE testified in that proffer that the complainant

had told her that she took Xanax and Zoloft. The SANE also testified that mixing

Xanax with alcohol can cause certain effects, including memory distortion and

blackouts, as well as dramatic mood changes. The SANE additionally testified

in the proffer that the complainant had told her that she has problems with

anxiety and chronic problems with herpes.

      Appellant argued that this information is relevant to explaining some of the

complainant’s behavior at the time of the incident tied directly to her ability to

remember parts of the evening specifically but inability to remember other parts.

The prosecutor objected that this proffered testimony was irrelevant and a



                                          4
violation of rule 404. The trial court sustained the objection and excluded the

proffered testimony.

      Rule 103 of the rules of evidence establishes the mode of preserving error

in the exclusion of evidence:

      (a) Preserving a Claim of Error. A party may claim error in a ruling
      to admit or exclude evidence only if the error affects a substantial
      right of the party and:

                (1) if the ruling admits evidence, a party, on the record:

                             (A) timely objects or moves to strike; and

                             (B) states the specific ground, unless it was
                             apparent from the context; or

                (2) if the ruling excludes evidence, a party informs the court of
                its substance by an offer of proof, unless the substance was
                apparent from the context.2

When evidence is improperly admitted, objection is required to preserve the

complaint.3 When evidence is improperly excluded, no objection is required, but

a proper offer of proof is required.4 As the Holmes court has explained,

             This court has recognized a distinction between the general
      rule in Rule 103(a)(2) and the case in which the defendant is not
      permitted to question a State’s witness about matters that might
      affect the witness’s credibility.

            In the latter case, “the defendant need not show what his
      cross-examination of the witness would have affirmatively

      2
          Tex. R. Evid. 103 (emphasis added).
      3
          Id.
      4
          Id.; see, e.g., Holmes v. State, 323 S.W.3d 163, 168 (Tex. Crim. App.
2009).


                                            5
      established; he must merely establish what general subject matter
      he desired to examine the witness about during his cross-
      examination and, if challenged, show on the record why such
      should be admitted into evidence.” In such a case the trial court’s
      ruling has prevented a defendant from questioning a State’s witness
      about subject matters which affect the witness’s credibility, that is,
      matters which might show malice, ill feeling, ill will, bias, prejudice,
      or animus.5

We therefore hold that Appellant’s complaints were preserved.6

      Appellant’s defense was that the sexual activity was consensual.           The

excluded testimony was offered to show the complainant’s ability to recall the

events and to explain her conduct on the night of the alleged assault.

      Appellant argues that the trial court’s exclusion of the evidence improperly

limited cross-examination that would reveal motive or bias of a witness and that it

therefore violated his Sixth Amendment protections, quoting 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
      Texas 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.


      5
          Holmes, 323 S.W.3d at 168 (footnotes omitted).
      6
          See id.


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              But, as the Supreme Court noted in Davis v. Alaska, there is
      an important distinction between an attack on the general credibility
      of a witness and a more particular attack on credibility that reveals
      “possible biases, prejudices, or ulterior motives of the witness as
      they may relate directly to issues or personalities in the case at
      hand.” Thus, under Davis, “the exposure of a witness’ motivation in
      testifying is a proper and important function of the constitutionally
      protected right of cross-examination.” However, as Justice Stewart
      noted in concurrence, the Court neither held nor suggested that the
      Constitution confers a right to impeach the general credibility of a
      witness through otherwise prohibited modes of cross-examination.
      Thus, the Davis Court did not hold that a defendant has an absolute
      constitutional right to impeach the general credibility of a witness in
      any fashion that he chooses. But 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

And in Carroll v. State, the Texas Court of Criminal Appeals stated:

            The Constitutional right of confrontation is violated when
      appropriate cross-examination is limited. The scope of appropriate
      cross-examination is necessarily broad. A defendant is entitled to
      pursue all avenues of cross-examination reasonably calculated to
      expose a motive, bias or interest for the witness to testify. When
      discussing the breadth of that scope we have held,

               . . . [.] Evidence to show bias or interest of a witness in
               a cause covers a wide range and the field of external
               circumstances from which probable bias or interest may
               be inferred is infinite. The rule encompasses all facts
               and circumstances, which when tested by human
               experience, tend to show that a witness may shade his
               testimony for the purpose of helping to establish one
               side of the cause only.8



      7
       296 S.W.3d 555, 561–63 (Tex. Crim. App. 2009) (footnotes and citations
omitted) (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110
(1974)).
      8
          916 S.W.2d 494, 497–98 (Tex. Crim. App. 1996) (citations omitted).


                                           7
As Appellant points out, these words of the Texas Court of Criminal Appeals are

applicable in this situation, where the trial court sustained the prosecutor’s

objections and limited Appellant’s right to cross-examination.

      Appellant, citing the discussion of the issue in Virts v. State,9 argues that

this rule also applies to the ability to cross-examine a witness regarding a

mental state that might affect the witness’s ability accurately to perceive, to

recall, and to recount the events to which the witness is called to testify:

      [T]his Court has often stated and discussed the fact that one of the
      greatest constitutional rights that an accused person might have is
      the right to confront and cross-examine the State’s witnesses . . . .

             . . . [W]e believe that it is still necessary to point out, for
      emphasis purposes, that the right of cross-examination by the
      accused of a testifying State’s witness includes the right to impeach
      the witness with relevant evidence that might reflect bias, interest,
      prejudice, inconsistent statements, traits of character affecting
      credibility, or evidence that might go to any impairment or disability
      affecting the witness’s credibility.10

      More recently, the Texas Court of Criminal Appeals has addressed the

right of a person charged with a criminal offense to cross-examine his accuser

on issues that would aid the jury in assessing the accuser’s credibility.        In

Johnson v. State, the Court reminded us that a defendant has a constitutional




      9
          739 S.W.2d 25 (Tex. Crim. App. 1987).
      10
           Id. at 29.


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right to present his defense to the jury so that the jury may weigh his evidence

along with the rest of the evidence presented.11

      In the case now before this court, the issue of sexual intercourse was

uncontested. The only contested issue was consent. This case was a swearing

match between Appellant and the complainant, a traditional “he said, she said”

case. The complainant could remember some of the events of the evening but

not all, she had a history of erratic behavior, and she admitted that she had

ingested Xanax, Zoloft, and alcohol on the night in question. She also had a

history of inpatient treatment at Millwood, a hospital for treatment of addiction

and mental health problems. All of this evidence was provided to the SANE as

part of the complainant’s medical diagnosis and treatment, but Appellant was not

allowed to go into these issues before the jury. He was not allowed to present

his defense.      We therefore hold that the trial court erred by excluding the

proffered evidence and thereby violating Appellant’s constitutional right to

present a defense.12

      Under Texas Rule of Appellate Procedure 44.2(a), if the appellate record

reveals a constitutional error, we must reverse a judgment of conviction unless




      11
           490 S.W.3d 895, 910, 914–15 (Tex. Crim. App. 2016).
      12
           See Holmes, 323 S.W.3d at 173.


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we determine beyond a reasonable doubt that the error did not contribute to the

conviction or punishment.13

      When the trial court sustained the prosecution’s objections to Appellant’s

attempts to offer evidence to challenge the complainant’s ability to remember the

events of the evening, her ability to accurately perceive the events, and her

erratic behavior that might have affected his perception of consent or lack of

consent; his attempts to offer medical reasons to explain the complainant’s

physical and emotional condition that evening; and, indeed, his attempts to offer

his entire defense, the trial court effectively deprived Appellant of his

constitutional rights to due process, to confront his accusers, and to offer a

defense. We hold that the trial court reversibly erred by preventing Appellant

from presenting this evidence to the jury. We sustain Appellant’s first two points.

Because our resolution of these two points is dispositive, we do not reach

Appellant’s remaining three points.14

      Having sustained Appellant’s first two points, which are dispositive, we

reverse the judgment of the trial court and remand this case to the trial court for

proceedings consistent with this opinion.




      13
           Id. at 173–74.
      14
           See Tex. R. App. P. 47.1.


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                                              /s/ Lee Ann Dauphinot
                                              LEE ANN DAUPHINOT
                                              JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

LIVINGSTON, C.J., dissents without opinion.

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

DELIVERED: October 13, 2016




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