             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
      ___________________________

           No. 02-18-00484-CR
      ___________________________

   JOSHUA ALLEN AUSTIN, Appellant

                       V.

           THE STATE OF TEXAS


On Appeal from Criminal District Court No. 3
           Tarrant County, Texas
        Trial Court No. 1509312D


 Before Sudderth, C.J.; Birdwell and Bassel, JJ.
   Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

                                   I. Introduction

      Appellant Joshua Allen Austin appeals his conviction by a jury for continuous

sexual abuse of a child. The jury assessed punishment at 30 years’ confinement in the

Texas Department of Criminal Justice.          The trial court rendered judgment in

accordance with the jury’s guilt and punishment verdicts.

      Appellant raises a single point on appeal. He contends that the trial court

impaired his right to present a “full and vital” defense when it restricted his right to

confront a witness through cross-examination. Specifically, he argues that the trial

court improperly denied him the right to cross-examine the forensic interviewer who

had interviewed the preteen complainant. He claims that he was deprived of the right

to cross-examine the interviewer about the complainant’s psychiatric treatment history

and to use that history to challenge the forensic interviewer’s testimony about how an

abuser might “groom” his victim.       In essence, Appellant claims that the cross-

examination was needed to rebut a claim that he had suggested homeschooling the

complainant to afford him an opportunity to abuse her when it was her psychiatric

problems that had caused her to be unable to attend school.

      We hold that Appellant has failed to preserve error on the point he raises on

appeal. The argument that Appellant makes to us is not the same as the argument

that he raised in the trial court. Further, the record did not inform the trial court of

the substance of the offer that Appellant had sought to make.

                                           2
      Even if we reached the merits of Appellant’s argument, we would hold that the

trial court did not place such restrictions on Appellant’s cross-examination of the

forensic interviewer that he was deprived of the ability to present a vital defensive

theory.

      We therefore affirm the judgment of the trial court.

                                   II. Background

      Appellant does not challenge the sufficiency of the evidence. Thus, we offer

only an abbreviated summary of the underlying facts presented at trial and the trial

court’s Rule 412 hearing.

      The complainant was a preteen, who made physical complaints that caused her

to be taken to the hospital. A physical examination revealed that she was pregnant.

      Initially, the complainant stated that the father was a boy her age.

Subsequently, she made a statement that her stepfather, Appellant, was the father.

The complainant’s child was not carried to term, and no genetic testing was

performed to determine the identity of the child’s father.

      After the complainant’s pregnancy prompted investigations, two forensic

interviews of the complainant were conducted. The complainant’s statements during

those interviews also diverged as to the identity of the father. In the first, the

complainant identified a boy who was her age as the father. In the second interview,

she described a sexual history with her stepfather.



                                           3
      The trial spanned several days and included testimony from the complainant;

various members of her family, including her mother and her aunt; law-enforcement

and child-welfare officials, including an investigator for Child Protective Services, a

forensic interviewer, and a detective; and Appellant and various members of his

family.

      The trial court conducted a Rule 412 hearing and ruled that certain evidence

would not be admissible. The trial court also sustained a number of objections when

Appellant’s counsel sought to cross-examine witnesses about evidence that was the

subject of the Rule 412 hearing and that delved into psychiatric treatment received by

the complainant.

                                    III. Analysis

A. Appellant has failed to preserve error for the complaint that he makes on
appeal.

      Our first challenge is to address the dissonance between the argument made in

Appellant’s brief and the argument he made to the trial court. The differences

between the arguments impact whether Appellant failed to preserve error by not

giving the trial court the opportunity to rule on the argument that he makes to us. We

hold that the trial court was never presented with the argument that Appellant makes

on appeal with sufficient clarity for that court to understand why it was allegedly

making the error that Appellant now contends it made. Further, Appellant’s offer of

proof never addressed the witness who is now the focus of his appellate argument,


                                          4
demonstrated that she had a level of knowledge that made a cross-examination of her

viable on the topic at issue, or explained why Appellant had not attempted to develop

the topic during the original cross-examination of the witness.

         The focus of Appellant’s argument on appeal is that the trial court should have

permitted the forensic interviewer who sponsored and described the complainant’s

two forensic interviews to be cross-examined about the complainant’s psychiatric

treatment history. 1 This argument focuses on the theory that the forensic interviewer

explained the grooming process that an abuser might use before sexually abusing a

child.       Appellant’s theory is premised on the fact that the forensic interviewer

explained that one tactic that might be used by an abuser is to isolate the child; here,

Appellant claims that the forensic interviewer’s testimony about the isolation tactic

used in grooming suggested that Appellant had isolated the complainant by

homeschooling her.         Appellant’s theory of the relevance of the complainant’s

psychiatric treatment history is that it provided a non-nefarious reason why the

complainant was homeschooled—her psychiatric issues required her removal from a

public-school environment.

         This theory is at odds with the reasons offered by Appellant’s counsel when

she made an offer of proof and argued for the admission of the complainant’s

psychiatric treatment history.      That argument focused on the theory that the

       The forensic interviewer described her role as “someone who is professionally
         1

trained to speak to children, interview children about allegations of abuse, as well as
adults who have, like, cognitive or communication delays.”

                                            5
complainant’s mother had left a false impression that the child had no mental or

behavioral issues. The offer of proof did not specify a particular witness from whom

the testimony should be elicited. The offer also did not focus on the forensic

interviewer or mention—much less explain—why she in particular should be cross-

examined on the issue of the complainant’s psychiatric treatment history. Defense

counsel did reference needing testimony to explain why the complainant was

homeschooled, but that explanation was not tied to the testimony of the forensic

interviewer.

       Our specific concern about the preservation is that to the extent the argument

that Appellant presents to us has any validity, the trial court was never presented with

this argument and thus was never given a reason why the forensic interviewer should

have been cross-examined on the complainant’s psychiatric treatment history.

Appellant articulated the legal basis for the offer but did not tell the trial court how, in

the context of the forensic interviewer’s testimony, a cross-examination of her about

the complainant’s psychiatric treatment history was relevant or vital to his

presentation of a defensive theory. Nor did the objection explain the need to cross-

examine the forensic interviewer in particular on this topic when she had no

independent knowledge of the complainant’s psychiatric treatment history and when

all that she knew about that history the jury also knew because they had heard the

recordings of the forensic interviews in their entirety.



                                             6
       Generally, the complaint made on appeal must comport with the complaint

made in the trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339

(Tex. Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009)

(“A complaint will not be preserved if the legal basis of the complaint raised on

appeal varies from the complaint made at trial.”); Pena v. State, 285 S.W.3d 459, 464

(Tex. Crim. App. 2009) (“Whether a party’s particular complaint is preserved depends

on whether the complaint on appeal comports with the complaint made at trial.”). To

determine whether the complaint on appeal conforms to that made at trial, we

consider the context in which the complaint was made and the parties’ shared

understanding at that time. Clark, 365 S.W.3d at 339; Resendez v. State, 306 S.W.3d

308, 313 (Tex. Crim. App. 2009); Pena, 285 S.W.3d at 464.

       More specifically, to preserve error on a claim that the trial court improperly

restricted cross-examination, an appellant has a two-pronged burden. The first prong

is to establish that the trial court understood that the legal basis for the objection is

that a ruling had infringed on the defendant’s Sixth Amendment rights by limiting his

ability to confront a witness. Golliday v. State, 560 S.W.3d 664, 669 (Tex. Crim. App.

2018) (stating that under Texas Rule of Appellate Procedure 33.1, “Appellant was

responsible for preserving the error he sought to raise on appeal by specifically

articulating the legal basis for his proffer at trial” (citing Reyna v. State, 168 S.W.3d 173,

179 (Tex. Crim. App. 2005))). We assume that Appellant gave the trial court an

adequate legal ground for his complaint.

                                              7
      The second prong of preservation stems from Texas Rule of Evidence 103,

which ensures that a trial court knows what the objecting party wants to offer: “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.” Tex. R. Evid. 103(a)(2).

This prong of preservation has alternative approaches depending on the appellant’s

complaint.

      If the offer relates to excluded evidence, an offer must give the trial court an

explanation why the evidence is needed. Golliday, 560 S.W.3d at 669 (citing Holmes v.

State, 323 S.W.3d 163, 166–67, 171 (Tex. Crim. App. 2009)). The court of criminal

appeals has described the rationale and burden to meet the second prong when the

question is the exclusion of evidence:

      Rule of Evidence 103(a)(2) limits the scope of issues which may be
      appealed when evidence is limited or excluded. “Error may not be
      predicated upon a ruling [that] . . . excludes evidence unless a substantial
      right of the party is affected, and . . . the substance of the evidence was made
      known to the court by offer, or was apparent from the context within which questions
      were asked.” The offer of proof may be in question-and-answer form or
      in the form of a concise statement by counsel. “An offer of proof to be
      accomplished by counsel’s concise statement must include a reasonably specific
      summary of the evidence offered and must state the relevance of the evidence unless the
      relevance is apparent, so that the court can determine whether the evidence is relevant
      and admissible.” The primary purpose of the offer of proof is to enable an
      appellate court to determine whether the exclusion was erroneous and
      harmful. A secondary purpose is to permit the trial [court] to reconsider
      [its] ruling in light of the actual evidence.

Holmes, 323 S.W.3d at 168 (emphasis added) (footnotes omitted).




                                                8
      The other alternative to meeting the second prong of preservation prescribed

by Rule 103 deals with a restriction on the scope of cross-examination. Id. In that

circumstance, an appellant bears a different burden:

      “[T]he defendant need not show what his cross-examination of the
      witness would have affirmatively 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.

Id. (emphasis added) (footnote omitted).

      It is with respect to the second prong of preservation that we find the flaw, and

that flaw exists no matter whether Appellant’s argument is that the trial court

excluded evidence of the complainant’s psychiatric treatment history or restricted the

scope of cross-examination of the forensic interviewer. First, the need to interrogate

the forensic interviewer about the complainant’s psychiatric treatment history was

never made clear to the trial court during the offer of proof. Here, the forensic

interviewer’s name came up in two instances over the two days that the offer

occurred. Appellant’s trial counsel first referenced the need to cross-examine the

forensic interviewer not about the complainant’s psychiatric history but about the

complainant’s alleged prior sexual misconduct, which is not the basis of Appellant’s

appellate complaint.2


      2
       The first exchange that mentioned the forensic interviewer is as follows:

                                              9
      Appellant’s counsel took up the matter again the next day and prefaced her

offer by saying only that “[w]e were discussing the cross-examination limitation on the

forensic interviewer and further the limitations on my cross-examination, not allowing

me to comment on the family law case in any matter.” During the offer of proof on

the second day, Appellant’s counsel never mentioned the specific need to cross-

examine the forensic interviewer on the complainant’s psychiatric treatment history.

The only time that the forensic interviewer’s name was mentioned occurred during

the following exchange:

      [DEFENSE COUNSEL]: Well, each of the State’s witnesses have
      indicated that it was Joshua Austin’s idea to pull [the complainant] out of
      public school.


      I believe that this incident -- these incidents of July of 2016 would be
      relevant to consideration by this jury to rebut several assertions made by
      the State and to show the character of the alleged victim in this case.
      And Rule 412(a) states that, of course, that specific instances of conduct
      of [the] alleged victim’s sexual behavior is not admissible unless it is
      necessary to rebut or explain scientific or medical evidence offered by
      the prosecutor.

             The evidence offered by the prosecutor through the[] . . . forensic
      interview[er], Alexis Chase Harrison, indicated [that] she [had] described
      for the jury as an expert several factors that she considers in determining
      -- basically, in her -- the substance of her testimony was that she felt [the
      complainant’s] allegations were true based on her reaction.

             I was not allowed to cross-examine that witness regarding any prior
      sexual misconduct in which that witness was a perpetrator, and I feel [that] had I
      been allowed to proffer that -- elicit that testimony on cross-
      examination, it would have -- in essence, I was unable to conduct a full
      cross-examination of that witness based on these reports. [Emphasis
      added.]

                                             10
             THE COURT: Well, it was, he said it was.

              [DEFENSE COUNSEL]: And the impression that the State has
      elicited is that he’s done this in an attempt to isolate her. Alexis Chase
      Harrison [(the forensic interviewer).]

When challenged to explain the interrelation between the complainant’s psychiatric

history and grooming, Appellant’s counsel did not offer one but shifted to a

justification that the evidence rebutted the impression that she was a normal child.

      Thus, the only specific topic that Appellant told the trial court that he needed

to cross-examine the forensic interviewer on was regarding the complainant’s alleged

prior sexual misconduct.     Perhaps out of fear of the restrictions of Rule 412,3

Appellant refocuses his appellate argument to argue that the cross-examination should

have included the complainant’s psychiatric history. But Appellant’s trial counsel

never told the trial court the point that he attempts to make on appeal: his alleged

need to cross-examine the forensic interviewer about the complainant’s psychiatric

treatment history in order to challenge the forensic interviewer’s testimony on

grooming. Thus, the trial court never had the opportunity that an offer of proof

should provide—an understanding of what Appellant wanted, why any prior rulings

were in error, and how those rulings should be addressed to correct them.

      Nor was the argument that Appellant now makes apparent from the context of

the forensic interviewer’s testimony. Nothing in the forensic interviewer’s testimony


      3
        See Tex. R. Evid. 412 (restricting admissibility of prior sexual behavior by
victim in sexual assault cases).

                                          11
communicated that she was a candidate to testify or be cross-examined about the

complainant’s psychiatric treatment history.       The forensic interviewer had no

independent personal knowledge of the complainant’s psychiatric treatment. The

only thing that the forensic interviewer knew about the complainant’s background

before conducting the interviews came from a request form that had “about two

sentences about the -- about potential allegations and then about what -- one more

sentence about potential additional allegations.” Whatever the forensic interviewer

knew of the complainant’s psychiatric treatment history came from what the

complainant had said during the interviews. The jury heard exactly what the forensic

interviewer had heard about that history because the interviews were played in their

entirety for the jury.

       Further, during her original cross-examination of the forensic interviewer,

Appellant’s counsel never attempted to elicit any testimony about the complainant’s

psychiatric treatment history or to tie the grooming process to her psychiatric history.

Though the forensic interviewer described grooming as requiring “unfettered access”

to a child, she made no reference to homeschooling as part of her answer.4


       4
        The forensic interviewer described the grooming process as follows:

       Q. I want to talk to you a little bit about the dynamics of child sexual
       abuse. Is there a term in your profession that’s used called “grooming”?

              A. Yes.

              Q. What’s that mean?


                                          12
Appellant’s counsel did ask a question about homeschooling in regard to the forensic

interviewer’s testimony about grooming. But that question had nothing to do with

the complainant’s psychiatric treatment history, and the interviewer agreed with the

premise of the question:

       Q. (BY [DEFENSE COUNSEL]) So, reason to home-school could
      either be environmental grooming like you testified to or it could be like
      [the complainant] said and she was being bullied at school and getting in
      trouble at school, yes?

             A. It could be, yes.

      We do not see how what was said during the offer of proof gave the trial court

any inkling that it was error to deny a cross-examination of the forensic interviewer on

the complainant’s psychiatric treatment history when (1) the trial court was not told

that Appellant had wanted to examine this particular witness on the topic; (2) the trial

court was not told how the lack of that examination had impaired Appellant’s defense

when the forensic interviewer had no independent knowledge of that history and

when all that she knew about that history had been shared with the jury; (3) no

questions were asked during the original cross-examination of the forensic interviewer


             A. So grooming is the unfettered access a person has to have to
      commit this type of crime. Grooming starts with the environment. The
      environment is the protective caregiver, the other siblings, the coaches,
      the teachers, anyone [who is] around the child. When a perpetrator
      starts with the environment, it’s to reduce the probability that [he is]
      going to get caught or that when the child reports, that [she] will be
      believed. And so the grooming process starts before -- on those
      peripherals, right, and those -- those family dynamics or in those schools
      or churches.

                                          13
about the history; and (4) the forensic interviewer had agreed on cross-examination

that homeschooling the complainant could have had a legitimate purpose. If viewed

as the erroneous admission of evidence, the trial court was never told what additional

evidence the forensic interviewer had to offer. If viewed as a restriction on cross-

examination, the trial court was never told how the questions would impact the

forensic interviewer’s credibility, why the questions were vital when not asked during

the original cross-examination, or why the question that was asked did not fulfill

Appellant’s need to challenge the forensic interviewer’s credibility.

B. Even if Appellant had preserved his argument, we would hold that the trial
court did not prevent him from presenting a full and vital defense.

      At trial, Appellant generally premised his argument on the contention that

without knowing the full extent of the complainant’s psychiatric treatment history, the

jury was left with the impression that she was a child without mental or behavioral

issues. On appeal, Appellant’s argument turns on the contention that without the

ability to cross-examine the forensic interviewer on the complainant’s psychiatric

treatment history, the jury was left with a misimpression of why Appellant had

suggested that she be homeschooled.

      But, as we will amplify, an appellant’s ability to conceive a hypothetical

justification for the questions that he wants to ask on cross-examination does not

deprive the trial court of the discretion to restrict cross-examination. The trial court

has many justifications that it can rely on to restrict cross-examination, and an


                                           14
appellant has no grounds to complain if he can still present a vital defense even with

the restrictions in place.

       Here, the trial court did not abuse its discretion by not permitting a fuller

description of the types of psychiatric treatment that the complainant had received or

by precluding Appellant from cross-examining the forensic interviewer on the topic.

The trial court pointed out that the cross-examination and the evidence that it would

introduce would be repetitive of what was already in the record. Though perhaps not

to the degree desired by Appellant, the record contains numerous references to the

complainant’s psychiatric treatment and hardly left the impression that the

complainant was untroubled. Indeed, the record contained enough evidence that

Appellant’s counsel made the very argument in closing that—assuming Appellant’s

appellate arguments were correct—would have been impermissible given the trial

court’s restrictions.

       With respect to Appellant’s argument on appeal, his counsel never even

attempted to cross-examine the forensic interviewer on the topic that he now

contends was so vital to his defense. He never explained to the trial court and never

explains to this court how the topic of the cross-examination is more than marginally

relevant. Nor does Appellant explain the viability of cross-examining the forensic

interviewer on this topic because her knowledge of the complainant’s psychiatric

treatment history was limited to what the complainant had told her during the

interviews and the entire recordings of those interviews were played for the jury. And

                                         15
the conclusion that the topic would be only marginally relevant is supported by the

fact that the topic was not raised with the forensic interviewer during her original

cross-examination. Finally, Appellant does not explain how the inability to cross-

examine the forensic interviewer impaired his defense when he was asked about the

decision to homeschool the complainant and his answer did not include her

psychiatric treatment history—another fact highlighted by the trial court while it was

trying to understand Appellant’s complaint during the offer of proof.

       1. Standard of review and the law applicable to limits on cross-
       examination

       A trial court’s determination to exclude evidence is reviewed under an abuse-

of-discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

Specifically,

       [a] trial [court] abuses [its] discretion when [its] decision falls outside the
       zone of reasonable disagreement. If the trial court’s evidentiary ruling is
       correct under any applicable theory of law, it will not be disturbed even
       if the trial court gave a wrong or insufficient reason for the ruling.

Id. (footnotes omitted).

       In the specific arena of limitations on the scope of cross-examination, the trial

court also has the discretion to restrict the scope of the examination:

       We recognize, however, that the right to cross-examine is not
       unqualified. A trial judge may limit the scope and extent of cross-
       examination, so long as those limits do not operate to infringe upon the
       Confrontation Clause’s guarantee of “an opportunity for effective cross-
       examination.” The defendant is not entitled to “cross-examination that
       is effective in whatever way, and to whatever extent,” he might wish.
       Trial judges retain “wide latitude” under the Confrontation Clause to

                                             16
      impose restrictions on cross-examination based on such criteria as
      “harassment, prejudice, confusion of the issues, the witness’s safety, or
      interrogation that is repetitive or only marginally relevant.” However,
      although the defendant does not have an absolute right to impeach the
      general credibility of a witness, the Constitution could be offended if a
      state evidentiary rule prohibited the defendant from cross-examining a
      witness concerning possible motives, biases, and prejudices to such an
      extent he could not present a vital defensive theory.

Id. at 909–10.

      2. The record contains numerous references to psychiatric treatment
      received by the complainant and the state of her mental health.

      Appellant argued at trial that by not being able to delve into the specific nature

of the complainant’s psychiatric treatment, the jury was left with a misimpression that

she was a normal child. On appeal, the argument pivots and crystalizes into an

argument that without evidence of the complainant’s psychiatric history, the jury was

left with a different misimpression—that Appellant did not have a legitimate reason to

homeschool the complainant:

      The trial court’s denial of Appellant’s ability to cross-examine [the
      forensic interviewer] denied the jurors the only opportunity to hear
      critical behavioral testimony regarding Complainant. A review of the record
      establishes that no other testimony was offered to support the legitimate reasons to pull
      Complainant out of school. The jurors were left with the impression that pulling
      Complainant from school was part of Appellant’s plan for sexual abuse.
      [Emphasis added.]

      The record, however, is replete with negative information about the

complainant and references to her psychiatric treatment.




                                                17
             a. References to psychiatric treatment

      During the second forensic interview, the complainant told the forensic

interviewer that her biological father called her a “crazy psychopathic girl.” Then, the

complainant indicated that she was “a little bit crazy.” Next, she told the forensic

interviewer that she had threatened her biological father and his wife “out of pure

anger” and that they had sent her to the “mental ward.” The complainant recalled the

“mental ward” fondly because it was “the best time” that she had ever experienced at

a hospital. She could not remember the specific year of treatment. The complainant

testified that after she had been in the “mental ward,” she went to a special school for

people who do drugs and have other problems and was told by a counselor that she

was homicidal, willing to kill, and suicidal. She then stated that “[she] had done self-

harm because [she] wanted out of [her] world.”

      The complainant testified that certain events had occurred “when [she] got out

of that outpatient treatment.” The complainant also stated that “[p]eople ha[d] tried

putting [her] through counseling so many times that [she had] just pushed it aside.”

During Appellant’s testimony, he testified about treatment that the complainant had

received, stating that “this was after the fact that [the complainant had] already [gone]

to Sundance [for] a six-week program for a child that had been abused.”

      Part of the medical history collected by a nurse who had examined the

complainant quotes her statement, “Well when I got out of Sundance in like February

or March of 2016 . . . .” Another medical history has the following entries:

                                           18
       Medication             denies

       Major Illnesses        psychiatric care 2015 – no meds since

Yet another medical history states that the complainant “has been treated for mental

health problems.” The same medical history has numerous entries stating that “while

living [with] father/stepmom [the complainant] was on [Z]oloft and [A]bilify.”

               b. The complainant’s description of herself

      At trial, the complainant offered the following descriptions of herself and her
behavior:

           • She has had a very rough childhood.

           • A fight with her mother caused her to be sent to live with her biological
             father.

           • Her father has found a way to keep her out of his life.

           • She described why she had moved back to Texas after living with her
             father in Wisconsin as follows:

       Q. Basically when you moved down here, it was because your dad
       kicked you out, right?

               A. Yeah.

              Q. And -- but prior to you[r] moving down here -- well, I mean,
       he kicked you out because he was scared for [your brother], didn’t he?

               A. No, he didn’t care about my brother. He was apparently
       terrified for the safety of his wife and the soon-to-be-born baby because
       I was apparently too much of a psycho, too crazy to be living in the
       house, and that I should be put in a psycho ward and be drugged up to
       the point where I can’t move.




                                               19
                Q. Put in a psycho ward and drugged up to where you can’t
      move?

          A. Yeah.

          • She had lied when she had said that her grandfather had attempted to
            have sex with her.

          • She testified that while she was being assaulted, she liked being slightly
            choked because she likes pain and is “into that.”

          • She “lied a lot” to protect herself when she was younger.

          • Her life was a “train wreck.”

          • She stated that in the past she had “lied more than [she had] told [the]
            truth.”

      A great deal of testimony centered around “urges” allegedly felt by the

complainant and how Appellant had purported to help the complainant deal with

these urges. But the officer investigating the matter reported that these urges included

violent ones:

      Q. Okay. And your investigation has revealed violent urges, right?

             A. There was information about violent urges that was not from
      [the complainant].

Others testified that the complainant had been violent to other children:

      Q. . . . Okay. And did you ever have any reason to consider [the
      complainant] to be a kid with a temper or -- or in any way violent toward
      other kids?

                A. Yes, I have witnessed it at my house.




                                            20
      3. The argument Appellant’s trial counsel made based on the existing
      record

      After the trial court made the ruling that is the focus of this appeal, Appellant’s

counsel was able to make the following argument from the information that was

already part of the record:

      Look at the medical records. Psychiatric treatment in Wisconsin. And
      [the complainant] talked to you about that or talked to [the forensic
      interviewer] about that in her forensic interview. She was hospitalized
      for violent urges, for being violent. [The complainant] told you, both on
      the witness stand and in her interview, her dad said she was a crazy
      psychopath who needed to be medicated until she couldn’t move.

             [The complainant’s mother] takes the stand and tells you, no,
      she’s a normal child, no different than any other child. But did she have
      trouble? No, no more trouble than anybody else.

             She was placed in a psychiatric unit in Wisconsin by her father
      and stepmother. She was placed in a psychiatric unit less than a year
      later here in Fort Worth by [her mother].

      4. The trial court acted within its discretion and did not deprive
      Appellant of the opportunity to present a vital defense.

      As the Austin court recently held, the scope of cross-examination is not

unilaterally controlled by the defendant, and the trial court has the discretion to

determine what level of examination will permit a defendant to muster the evidence

needed to make a defensive argument:

      The Confrontation Clause does not guarantee cross-examination that is
      effective in whatever way, and to whatever extent, the defense might
      wish. [Delaware v.] Van Arsdall, 475 U.S. [673,] 679[, 106 S. Ct. 1431,
      1435 (1986)]; see Johnson, 490 S.W.3d at 910 (noting that Confrontation
      Clause does not provide defendant “an absolute right to impeach the
      general credibility of a witness”); Hammer v. State, 296 S.W.3d 555, 562–

                                          21
       63 (Tex. Crim. App. 2009) (same). The test to determine the scope of
       cross-examination demanded by the Confrontation Clause is whether the
       defendant could present a vital defense theory without the evidence, not
       whether the defensive theory is as strong as it could be with the
       evidence. See Johnson, 433 S.W.3d at 557 (“[A] ‘less than optimal’
       opportunity for cross-examination does not, of itself, violate the Sixth
       Amendment.”). As long as the judge permits sufficient cross-
       examination to satisfy the Sixth Amendment, the trial judge has the
       ability to restrict the scope of cross-examination. Id. at 551–52.

Faglie v. State, No. 03-17-00281-CR, 2019 WL 847812, at *4 (Tex. App.—Austin Feb.

22, 2019, no pet.) (mem. op., not designated for publication); see also Irby v. State, 327

S.W.3d 138, 145 (Tex. Crim. App. 2010) (quoting Van Arsdall, 475 U.S. at 679, 106

S. Ct. at 1435, and stating that defendant lacks the right to “cross-examination . . . in

whatever way, and to whatever extent, the defense might wish”). As we noted when

discussing the standard of review, the trial court has the discretion to restrict cross-

examination to address a concern for “harassment, prejudice, confusion of the issues,

the witness’s safety, or interrogation that is repetitive or only marginally relevant.”

Johnson, 490 S.W.3d at 910 (quoting Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435).

       Appellant understandably wanted every negative fact that he could muster to

attack the complainant, but that desire did not force the trial court to forfeit control

of the proceedings. We see numerous reasons why the trial court had the discretion

to restrict Appellant from further delving into the complainant’s psychiatric treatment

history and to decide that Appellant was not deprived of presenting a vital defense by

the ruling.



                                           22
      First, the testimony was repetitive. Even if we do not hold Appellant to the

argument he made in his brief and allow him to rely on the more general argument

made during the offer of proof, we still fail to see how Appellant was impaired in

presenting his defense. Even without clarification of the nature of the institutions in

which the complainant received psychiatric treatment, the record contained abundant

evidence that the complainant was troubled and had received psychiatric treatment.

      Indeed, the trial court specifically noted that evidence of psychiatric treatment

was already in evidence through the medical records. And Appellant’s trial counsel’s

response to that observation was not that the medical records lacked the information

but that the jury should know more details about the treatment because “unless my

jurors know what Sundance is, they’re -- they’re not going to get the full picture as far

as why she was there. And again, the -- the impression that’s been left by [the

complainant’s mother] is that she’s just a normal girl, no problems.” It was a matter

for the trial court to decide how much mention should be made of the peripheral

issue that was already before the jury.

      Also, the premise—unless the jury was told “what Sundance is,” they would be

left with the impression that the complainant was “just a normal girl”—is unfounded.

The jury knew that the complainant had received psychiatric treatment; after all, the

complainant’s description of herself conveyed many of her troubles.5


      5
        Appellant’s attempt to use the complainant’s psychiatric treatment history was
also of dubious relevance from a legal standpoint.

                                           23
       First, the attempt to impeach the complainant’s mother on this issue involved a
collateral issue. The degree to which the complainant was “normal” was not directly
relevant to the offense charged. As such, the trial court had the discretion to limit or
stop the examination on the issue. Specifically,

       [e]vidence that is otherwise inadmissible may become admissible when a
       party opens the door to such evidence. A party opens the door by
       leaving a false impression with the jury that invites the other side to
       respond. But even if a party opens the door to rebuttal evidence, the
       trial judge still has the discretion to exclude the evidence under Rule 403.
       Courts generally prohibit a party from using extrinsic evidence to
       impeach a witness on a collateral issue. An issue is collateral if, beyond
       its impeachment value, a party would not “be entitled to prove it as a
       part of his case tending to establish his plea.” Unless the witness’s
       testimony created a false impression that is “directly relevant to the
       offense charged,” allowing a party to delve into the issue beyond the
       limits of cross[-]examination wastes time and confuses the issues.

Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009) (footnotes omitted).

        Second, evidence of mental treatment is usually not admissible under Texas
Rule of Evidence 608(b) unless it has a direct bearing on a witness’s credibility. See
Haynes v. State, No. 07-15-00369-CR, 2016 WL 6471346, at *6 (Tex. App.—Amarillo
Oct. 31, 2016, pet. ref’d) (mem. op., not designated for publication) (“Rule 608(b)
prohibits the introduction . . . of specific instances of conduct to attack a witness’s
credibility. Tex. R. Evid. 608. Cases finding evidence of the mental capacity of a
witness admissible as impeachment evidence . . . have required that the proponent
show the . . . purported impairment or disability would affect the witness’s
credibility.” (footnote omitted)); Scott v. State, 162 S.W.3d 397, 401–02 (Tex. App.—
Beaumont 2005, pet. ref’d) (holding that trial court did not abuse its discretion by
excluding evidence that showed witness’s condition—which involved a history of
repeated admissions to mental hospitals and medication—was ongoing because no
evidence proved that his condition affected his credibility regarding the events to
which he testified); see also Brooks v. State, No. 01-18-00175-CR, 2019 WL 4620994, at
*6–7 (Tex. App.—Houston [1st Dist.] Sept. 24, 2019, pet. filed) (stating that Texas
Rule of Evidence 611 permits cross-examination of witness on relevant matters and
“[c]ross-examination of a testifying State’s witness to show that the witness has
suffered a recent mental illness or disturbance is proper, provided that such mental illness
or disturbance is such that it might tend to reflect upon the witness’s credibility.” (quoting Virts v.
State, 739 S.W.2d 25, 30 (Tex. Crim. App. 1987) (emphasis added))). Here, Appellant

                                                  24
      In considering the repetitiveness and the marginal relevance of the evidence,

the trial court also had the right to balance the need to recall witnesses to delve into

the complainant’s psychiatric treatment history and to further extend the trial with the

fact that adequate evidence of the complainant’s psychiatric treatment history was in

the record.

      Finally, Appellant’s counsel’s argument to the jury confirmed that the record

already contained enough evidence to make the argument that counsel had contended

was so vital. Thus, from a practical standpoint, the inability to cross-examine the

forensic interviewer did not hinder counsel from presenting the desired argument.

      And holding Appellant to the argument he makes in his brief, we do not

understand how raising the topic with the forensic interviewer was of anything more

than marginal relevance. For all the reasons we have articulated above, the forensic

interviewer knew nothing about the complainant’s psychiatric treatment history other

than what she was told during the interviews that were played for the jury. The trial

court could have concluded that even Appellant did not see the line of questioning as

vital when the original cross-examination of the forensic interviewer did not include a



did not argue that the complainant’s psychiatric treatment history impacted her
credibility. The trial judge could have questioned the effort to introduce the
complainant’s psychiatric treatment history via impeachment of the mother as a
means to backdoor evidence that would not be admissible through the front door
because it was not a proper attack on the complainant’s credibility. This consideration
also supports the trial court’s decision to restrict cross-examination on the psychiatric
treatment history.

                                           25
question on the topic. That omission in and of itself belies that it was a vital topic

that Appellant needed to address with the forensic interviewer.

      Even if the trial court had been presented with the argument that Appellant

makes on appeal, another aspect of the record demonstrates that the premise of why

the line of cross-examination was so vital is unfounded. Without the psychiatric

treatment evidence, Appellant argues that the jury was left without a challenge to the

implication from the forensic interviewer’s testimony that homeschooling was a part

of the grooming process that gave Appellant unfettered access to the complainant.6



      6
       Specifically, Appellant argues,

      By denying Appellant the opportunity to cross-examine [the forensic
      interviewer], Appellant was unable to offer powerful evidence to clarify
      Complainant’s background that would support taking Complainant out
      of public school to be home schooled for reasons other than creating an
      atmosphere for a compliant sexual abuse victim. Without the ability to
      fully cross-examine [the forensic interviewer], Appellant was denied [the
      opportunity] to offer the jurors a complete picture of Complainant’s
      history of violent behavior. As his offer of proof indicates, Complainant
      attempted to smother her brother and was placed in a psychiatric
      hospital. This probative, relevant evidence was not placed in front of
      the jurors.

             Further, Appellant was not allowed to clarify that Complainant
      had recently been in a psychiatric hospital, Sundance, in Fort Worth. . . .
      The inability to be afforded his Constitutional Due Process rights to
      Confrontation left the jurors with an impression that Complainant had
      insignificant problems. The trial court’s denial to allow Appellant the
      opportunity to cross-examine [the forensic interviewer] and rebut this
      impression that he only wanted to home school her to groom her to be a
      victim was an egregious error.


                                          26
This argument has a massive hole because Appellant had the opportunity to explain

why he had suggested homeschooling for the complainant and that explanation did

not include her psychiatric treatment history or her allegedly aberrational behavior.

This disconnect demonstrates the marginal—at most—relevance of the topic that

Appellant now claims that he wanted to address in his cross-examination of the

forensic interviewer.

      In the following exchange, Appellant had the opportunity to and did explain

why he had suggested that the complainant should be homeschooled, and his

explanation had nothing to do with her psychiatric treatment history:

      Q. Where did [the complainant] go to school?

             A. She started the school year in [the name of the school is
      omitted to protect the complainant’s privacy]. Same problems that she
      had, same issues going on. Getting caught in class with boys, talking to
      them, getting into arguments with teachers. You know, what would be
      considered, I guess, normal female behavior at that age, I guess.

            Q. And what did you and [the complainant’s mother] do as
      parents in regards to those issues?

             A. We discussed home-schooling because I was personally home-
      schooled for similar issues with, you know, teachers not understanding
      certain things or me not understanding what they were trying to present

             This characterization failed to show the complete background of
      Complainant’s story; therefore, the jurors were not afforded an
      opportunity to hear any testimony by the defense that Complainant
      could have been pulled out of public school because of previous
      violence issues that made home schooling a legitimate, viable alternative
      to public school. Instead, the jurors were presented evidence without
      rebuttal or clarification that Appellant’s home school plan was part of his
      method to make her a compliant victim.

                                          27
      to me. The expectations of school is a little different for people that
      don’t quite understand the dynamic, how it’s supposed to be. So I
      discussed -- well, I kind of put forward, I said, well, what about home-
      school.

             Q. So home-school was your idea, correct?

             A. My idea, but I had no control whether it would happen or not.

            Q. And that was your idea based on personal -- on your personal
      experience with the home-schooling, correct?

             A. Yes, ma’am.

             Q. Was it your idea so that you could isolate and sexually assault
      [the complainant]?

             A. No, ma’am.

      The trial court’s questioning of counsel during the offer of proof highlighted

that Appellant had given his explanation for why he had suggested homeschooling the

complainant. At the time Appellant’s counsel made her offer of proof, the trial court

noted that Appellant had given his reasons for suggesting that the complainant be

homeschooled and had tried, without success, to determine the relevance of her

psychiatric treatment history:

      THE COURT: Well, problems, how is a child’s mental problems
      relevant? How is that -- how [does] a child[’s] having mental problem[s]
      illustrate that what the mother said is --

              [DEFENSE COUNSEL]: Well, . . . the State’s witnesses have
      indicated that it was Joshua Austin’s idea to pull [the complainant] out of public
      school.

             THE COURT: Well, it was, he said it was.


                                             28
               [DEFENSE COUNSEL]: And the impression that the State has
       elicited is that he’s done this in an attempt to isolate her. [The forensic
       interviewer] --

             THE COURT: I understand. I understand what they’re saying.
       And your testimony was because she was having problems with school
       and boys at school and kids at school. So, the fact that she went to
       Sundance, how does that -- I don’t understand -- I’m trying to
       understand how that is admissible.

              [DEFENSE COUNSEL]: But certainly to rebut the impression
       that -- left by [the complainant’s mother] that she’s just a normal child.
       And then also again, it’s --

              THE COURT: So a normal child doesn’t have mental problems?
       I don’t understand that argument. Is that what you’re saying?

                [DEFENSE COUNSEL]: No. [Emphasis added.]

       Appellant’s argument on appeal does not acknowledge or address how he was

deprived of the opportunity to present a vital defense that hinges on the argument

that the complainant’s psychiatric treatment history prompted her homeschooling

when the reasons he offered for suggesting that course of action were not based on

that history.

       At the end of the day, the trial court acted within the zone of its discretion.

The trial court had legitimate concerns about prolonging the trial to revisit a topic that

had already been adequately addressed in the record. The questioning of the forensic

interviewer about the complainant’s psychiatric treatment history of which she had no

independent knowledge appears of marginal relevance, both from a legal standpoint

and practically, because the question was not asked when Appellant originally had the


                                           29
opportunity to do so. And finally, the argument on why the cross-examination was so

vital was belied by Appellant’s own testimony. Accordingly, we overrule Appellant’s

sole point.

                                  IV. Conclusion

      Having overruled Appellant’s sole point, we affirm the trial court’s judgment.

                                                     /s/ Dabney Bassel

                                                     Dabney Bassel
                                                     Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: November 21, 2019




                                         30
