                                    NO. 07-04-0383-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   DECEMBER 21, 2005

                          ______________________________

                        CALVIN DEWAYNE COFER, APPELLANT

                                             V.

                          THE STATE OF TEXAS, APPELLEE
                        _________________________________

                FROM THE 7TH DISTRICT COURT OF SMITH COUNTY;

             NO. 007-1754-03; HONORABLE KERRY L. RUSSELL, JUDGE
                        _______________________________


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


                                MEMORANDUM OPINION


       Appellant, Calvin DeWayne Cofer, appeals his conviction for aggravated sexual

assault of a child and his sentence of 35 years incarceration in the Institutional Division of

the Texas Department of Criminal Justice. We affirm.


                                        Background


       Appellant was the stepfather of the victim, K.M.K., and was living in the home with

the victim, her mother, and her brother for approximately five years. In August 2003,
K.M.K. told a teacher that her stepfather had been sexually assaulting her; K.M.K. told the

teacher that appellant began sexually assaulting her in April 2003 when she was 13 years

old, and that he had assaulted her on more than one occasion. After the teacher reported

the allegations to the authorities, appellant was charged with aggravated sexual assault of

a child.


       At trial, appellant attempted to call the victim’s mother to testify, however, the trial

court ruled a portion of her testimony as inadmissible under Texas Rule of Evidence 412,

commonly referred as the “rape shield law.” See TEX . R. EVID . 412.1 Specifically, the court

ruled that the mother would not be allowed to testify about the victim’s self-stimulation nor

the victim’s sexual conduct with two other juveniles. Although the victim’s mother was not

allowed to testify about the victim’s sexual history, she was allowed to testify that the victim

has a reputation for untruthfulness. Further, appellant presented the victim’s aunt and uncle

who testified that it was their opinion that the victim was untruthful. Nevertheless, the jury

found appellant guilty and assessed a punishment of 35 years incarceration in the

Institutional Division of the Texas Department of Criminal Justice.


       Appellant presents one issue. Appellant contends that the trial court erred in

excluding the victim’s mother’s testimony under Rule 412 regarding the victim’s prior sexual

history. We affirm.




       1
           Further reference to the Texas Rules of Evidence will be by reference to “Rule __.”

                                                2
                                   Exclusion of Testimony


           A trial court’s decision to admit or exclude evidence is reviewed under an abuse

of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App. 1996);

Montgomery v. State, 810 S.W.2d. 372, 390 (Tex.Crim.App. 1990) (op. on reh’g). A

reviewing court should not reverse a trial judge whose ruling was within the zone of

reasonable disagreement. Green, 934 S.W.2d at 102; see also Montgomery, 810 S.W.2d

at 391.


       Under Rule 412(b), evidence of specific instances of past sexual behavior is not

admissible unless it meets a two prong test. Under the first prong, the evidence must: (a)

be necessary to rebut scientific or medical evidence offered by the State; (b) be of past

sexual behavior with the accused that is offered to show consent of the victim; (c) relate to

motive or bias of the victim; (d) be admissible for impeachment under Rule 609; or (e) be

constitutionally required to be admitted. Additionally, under the second prong, the probative

value of the evidence must outweigh the danger of unfair prejudice. Rule 412(b)(2). In

this case, appellant requested a Rule 412 hearing to determine the admissibility of the

victim’s mother’s testimony. See Rule 412(c). During the hearing, appellant contended

that the testimony was admissible because it related to motive or bias of the victim, and

that the testimony’s admission was constitutionally required.2 Appellant contends that the

evidence was relevant to show that victim and another of the State’s witnesses previously

engaged in sexual contact and were motivated to lie, presumably to conceal her activity


       2
        Appellant failed to argue how the excluded testimony was required by the
constitution. Thus, this argument is not before us for review. TEX . R. APP . P. 33.1.

                                              3
with the State’s witness.3 The trial court ruled that the testimony was protected, i.e.

inadmissible, under Rule 412 and further determined that appellant had failed to show how

the probative value of the testimony outweighed the danger of unfair prejudice. Since the

record shows that the trial court did not believe that appellant had met its burden to show

the probative value of the testimony, we will assume without deciding, that the testimony

met the first prong of Rule 412, and will review the trial court’s decision on the second

prong for abuse of discretion.


       Appellant offered the mother’s testimony regarding the victim’s sexual history as

probative of the victim’s motive to lie. However, appellant had three other witnesses testify

as to their opinion of the victim’s truthfulness, and thus, was able to put the issue of

truthfulness before the jury.    Further, the victim testified and was subject to cross-

examination by appellant.


       In contrast, evidence of the sexual history of a victim is to be highly scrutinized for

its probative value. Allen v. State, 700 S.W.2d 924, 929 (Tex.Crim.App.1985); Burks v.

State, 40 S.W.3d 698, 699 (Tex.App.–Waco 2001, pet. ref’d).               In sexual assault

prosecution, the "rape shield law" protects complainant's previous sexual conduct from

public exposure except in limited circumstances, and attempts to avoid abusive,

embarrassing, and irrelevant inquiries into the victim’s private life. Wofford v. State, 903



       3
        On appeal, appellant further contends that the victim was motivated to testify falsely
to remove appellant from the household. However, appellant’s contention on appeal does
not correspond to his objection at the Rule 412 hearing. Hence, he has failed to preserve
error on this contention. TEX . R. APP . P. 33.1; See Goff v. State, 921 S.W.2d 537, 551
(Tex.Crim.App. 1996).

                                              4
S.W.2d 796, 798 (Tex.App.–Dallas 1995, pet. ref’d). When the cumulative nature of the

excluded testimony is compared to the risk of unfair prejudice to the victim, we conclude

that the trial court’s ruling on the testimony was within the zone of reasonable

disagreement. Thus, we conclude that the excluded testimony of the victim’s sexual history

was cumulative of the opinion testimony of her untruthfulness and, therefore, held little

probative value. Further, the trial court did not abuse its discretion in excluding the

mother’s proposed testimony of the victim’s sexual history. We overrule appellant’s issue.




                                       Conclusion


      Having overruled appellant’s issue, we affirm.




                                         Mackey K. Hancock
                                             Justice




Do not publish.




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