                                                                               PD-1496-14
                                                              COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
June 9, 2015                                                  Transmitted 6/8/2015 5:39:23 PM
                                                                Accepted 6/9/2015 8:48:17 AM
                            NO. PD-1496-14                                     ABEL ACOSTA
                                                                                       CLERK
                         COA NO. 02-11-00253-CR

                      COURT OF CRIMINAL APPEALS
                            AUSTIN, TEXAS

                  PETITION FOR DISCRETIONARY REVIEW
                      FROM THE COURT OF APPEALS
                       SECOND JUDICIAL DISTRICT
                           FT. WORTH, TEXAS

                CHIEF JUSTICE SHARON KELLER, PRESIDING

   JOE DALE JOHNSON
            Petitioner

                                  VS.

   THE STATE OF TEXAS
            Appellee


               PETITIONER’S DISCRETIONARY REVIEW BRIEF


                                 Jeff Eaves
                                 State Bar No. 24045820
                                 900 8th St., Ste. 1400
                                 Wichita Falls, Texas 76301
                                 Tel. (940) 322-2002
                                 Fax: (940) 322-1001

                                 Todd Greenwood
                                 State Bar No. 24048111
                                 813 8th St. Ste. 550-K
                                 Wichita Falls, Texas 76301
                                 Tel./Fax: (940) 689-0707

                                 ATTORNEYS FOR PETITIONER



                                   i
                               TABLE OF CONTENTS

SUBJECT                                                                               PAGE

IDENTITY OF PARTIES AND COUNSEL……………………………………….i

TABLE OF CONTENTS…………………………………………………………..ii

INDEX OF AUTHORITIES……………………………………………………iv-v

STATEMENT OF THE CASE…………………………………………………….1

STATEMENT OF PROCEDURAL HISTORY…………………………………...2

STATEMENT REGARDING ORAL ARGUMENT……………………………...3

GROUND FOR REVIEW………………………………………………………….3

STATEMENT OF FACTS…………………………………………………………4

SUMMARY OF THE ARGUMENT………………………………………………8

ARGUMENT……………………………………………………………………...12

  I. THIS ISSUE IS ABOUT THE ABUSE NOT THE ADJUDICATION…....14

  II. THE EXCLUDED TESTIMONY WAS RELEVANT BECAUSE THE
      LOGICAL CONNECTION/NEXUS BETWEEN THE COMPLAINANT’S
      LONGSTANDING SEXUAL ABUSE OF HIS LITTLE SISTER AND THE
      ALLEGATION IS MANIFEST…................................................................18

     A. The state's position as adopted by the en banc majority does not address
        the issue properly before this court……………………………………..19

     B. The complainant’s longstanding abuse of his sister was logically
        connected to the abuse he alleged against petitioner because it showed his
        motive, means, opportunity and knowledge to fabricate the allegation...21

         1. The prosecution created a false impression by characterizing
            complainant as a typical, even innocent youth while vilifying
                                             ii
        petitioner as a manipulative, devious predator…………….……….21

     2. It was petitioner’s constitutional right to cross examine the
        complainant regarding the relationship of any mental condition for
        which he received treatment to his motive to fabricate the
        allegation…………………………………………………………….23

     3. Petitioner was entitled to cross examine the complainant when he put
        his credibility in issue by contradicting his own prior testimony and
        that of his father…………………………………………….……….25

     4. The superficial cross examination permitted into shoplifting, lying,
        access to pornography and the like did not constitute confrontation
        sufficient to allow petitioner to develop his defense………….……28

     5. Cross examination that was allowed into the complainant’s having
        surfed pornography did not constitute confrontation sufficient to allow
        petitioner to develop his defense……………………………………29

   III. THE EN BANC HOLDING RELIES ON READING OF THE RECORD
        WHICH SELECTIVELY IGNORES INCONVENIENT FACTS….....31

   IV. THE TRIAL COURT’S WIDE LATITUDE TO DETERMINE
       CONSTITUTIONALLY-PROTECTED CONFRONTATION DOES
       NOT INCLUDE DEPRIVING PETITIONER OF A “VIABLE
       DEFENSIVE THEORY” LET ALONE HIS SOLE DEFENSE AT
       TRIAL………………………………………………………………….40

CONCLUSION…………………………………….……………………………..43

PRAYER FOR RELIEF…………………………………………………………..44

CERTIFICATE OF SERVICE……………………………………………………45

CERTIFICATE OF COMPLIANCE……………………………………………...45




                                    iii
                         INDEX OF AUTHORITIES

CASES                                                                   PAGE

Chitwood v. State 350 S.W.3d    746            (Tex.App.—Amarillo
2011)…………………………………………..................................................26, 30

Delaware v. Van Arsdall, 475 U.S. 673 (1986)………..…………………….……42

Davis v. Alaska, 415 U.S. 308 (1974)………..…………..……………………….13

Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009)……...13, 19, 26, 28, 40

Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010)………......…...25, 29, 31, 41

Holmes v. South Carolina, 547 U.S. 319 (2006)………………………………….29

Jackson v. State, 482 S.W. 2d 864 (Tex. Crim. App. 1972)…………....…………26

Koehler v. State, 679 S.W. 2d 6 (Tex. Crim. App. 1984)…………………………26

Pointer v. Texas, 380 U.S. 400 (1965)………………………………..………12, 31

Shelby v. State, 819 S.W. 2d 544 (Tex. Crim. App. 1991)…………..….………..42

Virts v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010)…………..………………24



CONSTITUTIONS, STATUTES, & RULES                                       PAGE

Fifth Amendment, United States Constitution………..…………………..11, 30, 44

Sixth Amendment, United States Constitution………………………………..11, 44

Fourteenth Amendment, United States Constitution……………..……….11, 12, 44

Art. I, §10, Texas Constitution………………………..………………………11, 44

Art. I, §19, Texas Constitution…………………………….……….…………11, 44
                                      iv
Texas Rule of Evidence 101(c)(West 2013)………………………………………13

Tex. R. Evid. 404 (b)………………………………...…..……………………11, 44

Tex. R. Evid. 412 (b)(1, 3)(C)………………………..…….…………….11, 26, 44

Tex. R. Evid. 608(b)…………………………………………………………..11, 13

Tex. R. Evid. 609……………………………………………………………...11, 13

Texas Rule of Appellate Procedure Rule 44.2(a)……………………………...11, 42


APPENDICES

APPENDIX A, Memorandum Opinion….…………………………………….A-1

APPENDIX B, En Banc Opinion………………………………………………B-1

APPENDIX C, En Banc Dissent ………………………………………………C-1




                                v
                               NO. PD-1496-14
                            COA NO. 02-11-00253-CR

                        COURT OF CRIMINAL APPEALS
                              AUSTIN, TEXAS

              DISCRETIONARY REVIEW BRIEF ON THE MERITS
                     FROM THE COURT OF APPEALS
                      SECOND JUDICIAL DISTRICT
                          FT. WORTH, TEXAS

JOE DALE JOHNSON
         Petitioner

                                        VS.

THE STATE OF TEXAS
         Appellee


                         STATEMENT OF THE CASE

       Petitioner seeks discretionary review of a 4-3 en banc decision of the Second

Court of Appeals affirming Petitioner’s convictions for Aggravated Sexual Assault

which upheld the trial court’s ruling that barred cross examination regarding the

complainant’s longstanding sexual abuse of his little sister. That abuse and the

circumstances attendant to it potentially gave the complainant motive, means,

knowledge and opportunity to fabricate his allegation against Petitioner. The

State’s case at trial relied entirely upon the witness’s bare and uncorroborated

allegation.    Full and unfettered cross examination into the sexual abuse of

complainant’s sister was necessary to present Petitioner’s sole defense of

fabrication at trial.

                                         1
                 STATEMENT OF PROCEDURAL HISTORY

      Petitioner was charged with two counts of aggravated sexual assault and one

count of Indecency with a Child. Petitioner pleaded not guilty and the case was

tried during the week of June 14, 2011.1 He was subsequently convicted and the

jury assessed consecutive life sentences in the Texas Department of Criminal

Justice on all three counts.2 The 89th District Court judge ruled that the sentences

were to run consecutively, and the judgments were signed and entered June 16,

2011.3

      A panel of the Second Court of Appeals issued an opinion on February 14,

2013, reversing and rendering the Indecency with a Child by Contact conviction

and reversing and remanding the Aggravated Sexual Assault counts.4 The State

subsequently filed a motion for rehearing en banc on February 22, 2013. The

panel opinion was subsequently overturned on October 9, 2014 by the court sitting

en banc on the Aggravated Assault counts in a 4-3 decision of the court, affirming

the convictions and life sentences for counts one and two.5 Count three remained

reversed and rendered as the state confessed error. Petitioner seeks review of the

decision of the Court of Appeals regarding the en banc opinion reversing the panel



1 R.R. 1: 10.
2 R.R. 10: 40-41.
3
  C.R. 169-177. Appendix A, Memorandum Op. at 11-13.
4
  See Appendix A, Memorandum Op.
5 See Appendix B, En Banc Op.


                                           2
opinion. Appellant’s Petition for Discretionary Review was granted on April 22,

2015.

               STATEMENT REGARDING ORAL ARGUMENT

        Petitioner believes that the issue presented by the ruling of the appellate

court in this matter has profound consequences for all criminal cases based upon

accusation alone and consequently where the sole defense may be a full and

unfettered cross examination of the complainant. Therefore, oral argument should

be granted following full briefing of the issues.

                            GROUND FOR REVIEW

        The Court of Appeals sitting en banc erred in overturning its memorandum

panel opinion holding that Appellant was deprived of the fundamental right to a

fair trial. Therefore, Due Process was denied when the trial court barred cross

examination of the State’s complaining witness on the eve of trial given: 1) the

State’s case against Petitioner was based almost entirely on this witness’s outcry

and Petitioner’s sole defense of fabrication at trial depended entirely upon the

Confrontation which was denied and 2) the court’s ruling together with the State’s

case in chief created a false impression of the complaining witness which

Petitioner was entitled to correct through cross examination.




                                          3
                               STATEMENT OF FACTS

       The complainant in this case was 12 years old when he accused Petitioner of

performing fellatio on him and allowing complainant to do the same to him. 6 The

complainant testified these acts occurred in Petitioner's home with no one else

present and no corroboration.7 Defendant had been convicted of two counts of

Aggravated Sodomy and Indecent Liberties with a child in Sedgwick County,

Kansas on August 20, 1980, and December 14, 1982.8 At the time he made the

allegation, the complainant had been sexually abusing his younger sister for a

number of years.9 He continued to sexually abuse his sister after he made this

allegation against Petitioner.10 His parents knew about the abuse of his sister

because he told them about it when it occurred.11 They had arranged counseling

specifically for this abuse of their daughter though there was contradictory

testimony between complainant and his father, who also testified, as well as within

complainant's own testimony.12




6 R.R. 7: 11,137-38.
7 Id. at 124.
8
  R.R. 12: 10-15.
9 Id. at 160-61.

10 Id.

11 Id.

12 Id. at 44, 66, 160-62 (complaint ultimately testified outside the presence of the jury that he

abused his sister for years to include before and after the allegation against Petitioner and that his
parents had sought counseling in 2007 – not 2008 – when he was adjudicated for the sexual
abuse of his sister).
                                                  4
       The complainant appears to have undergone additional counseling from

April 2008, after the State got around to formally adjudicating the complainant for

an instance of the longstanding sexual abuse of his sister.13 The complainant had

been put in counseling in 2007 by his parents for other reasons to include

repeatedly viewing internet pornography, shoplifting, problems with peers at

school and with his family members at home, and depression.14 He was also upset

with his father because he wanted a specific video game his father refused to

purchase for him.15

       Petitioner, a board member at the church and in his fifties, let complainant

help him mow lawns when the complainant let it be known within a local church

that the complainant was looking for work.16 As time passed, the complainant

accepted more work mowing lawns with Petitioner including Petitioner’s own as

well as for other church members.17 The complainant claimed to have accepted

cash from Petitioner on several occasions.18 Petitioner and complainant also went

to local hockey games and the movies with Petitioner’s nephews as well as to the


13 Defense Exhibits 1-3 reference Defense Ex. 1, “Stipulation of Evidence,” COUNT 1: “That on
or about April 20, 2008, in Wichita County, Texas, I did then and there intentionally or
knowingly cause the penetration of the female sexual organ of Pseudonym 08-041630, a child
who was then and there younger than 14 (fourteen) years of age and not my spouse of myself by
my finger.” (admitted for record purposes only).
14 R.R. 7: 60-62, 65-69, 106, 148-49, 152, 156, 158, 160.

15 Id. at 46.

16 Id. at 28, 84.

17 Id. at 82.

18 Id. at 92, 94.


                                              5
nephews’ home in Walters, Oklahoma, approximately 30 miles distant from

Burkburnett where complainant and Petitioner lived.19

       The complainant walked over to Petitioner’s house on at least one

occasion.20     The complainant and the Petitioner apparently confided in one

another.21 This may have included the fact that Petitioner had been convicted of a

sexual offense with a teenage boy when he was in his twenties in Kansas or that

complainant had been sexually abusing his sister for some time. 22               The

complainant's father testified that he was bothered that his son seemed to be

spending time with Petitioner given his son had a father figure in his life.23 In the

summer of 2007 he limited his son’s contact with Petitioner because he felt they

were spending too much time together.24

       Ultimately, complainant made the allegation which resulted in the charges

for which Petitioner now serves three consecutive life sentences.25              The

complainant made the allegation immediately after Petitioner presented the church

youth group with a Nintendo DS hand held video game instead of giving it to

complainant as a gift.26


19 Id. at 77-78, 81-82.
20 Id. at 30-31.
21 Id. at 101.

22 R.R. 9: 23-25; C.R. 42-44, 55-56 (judgment of conviction).

23 R.R.7: 30.

24 Id.

25 R.R. 10: 40-41.

26 R.R. 7: 109, 113.


                                               6
        The complainant approached a youth minister of the church after he learned

about the gift of the Nintendo DS, stating he was glad that the handheld game was

taken away from the youth group.27        According to the complainant, the youth

minister, unidentified in the record other than as “Jimmy,” told complainant,

“sounds a lot like something that happened to me.” 28 According to complainant

and his father, complainant made his allegation to “Jimmy” who then went to the

complainant’s household later that night to tell the complainant’s parents.

“Jimmy” was never interviewed by law enforcement and never called at trial.

        “Jimmy” reportedly went to the complainant’s parents who, in turn, reported

the outcry to the Burkburnett Police Department.29 A forensic child interviewer for

Patsy’s House, the regional forensic facility which provides interviewers for

alleged cases of sexual abuse of children, was not available to interview

complainant according to the lead detective, Lahoma Vaughn.30            Vaughn, a

Burkburnett police detective then took on the dual role of lead detective and

forensic sexual assault interviewer.31

        The detective did not interview the initial outcry witness, the church youth

minister known as “Jimmy,” even though he apparently had conveyed information



27 Id. at 114-115.
28 Id.
29 Id. at 117.

30 R.R. 8: 15.

31 Id. at 8: 65-66.


                                          7
of his own molestation as a child to complainant.32 She did not interview the

Petitioner’s wife who lived in the home where most of the interaction between

complainant and the Petitioner took place and with whom complainant was not

getting along.33

        Neither did she interview complainant’s counselor who he saw specifically

for the sexual abuse of his sister although complainant had been in counseling for

this longstanding sexual molestation for a period of years.34 She also did not

interview the pastor of the church where the alleged “grooming” had occurred over

a period of several months as the pastor, at the time of trial, actually claimed to be

unaware of the allegations.35

                         SUMMARY OF THE ARGUMENT


        The twelve-year-old complainant claimed Petitioner sexually assaulted him

in Petitioner's home in April 2007 – or maybe in May or June.36 He testified this

happened with no one else present and with no other corroboration.                The

complainant had been sexually abusing his little sister over a period of years prior

to the allegation and even as late as April 2008 when he was finally adjudicated by



32 Id. at 42.
33
   Id. at 44.
34 Id. at 44, 66, 160.

35 Id. at 110.

36 Id. at 83, 89, 122.


                                          8
the State for an instance of this longstanding abuse.37 He had been repeatedly

accessed Internet pornography, shoplifted, had problems with peers at school and

with his family members at home, and was depressed.38 He had been in counseling

for some or all of these issues but undoubtedly for the longstanding sexual abuse of

his little sister because his parents had arranged this counseling in part for that

purpose.39 He was also upset with his father because he wanted a specific video

game his father refused to purchase for him.40

       One reasonable interpretation of the facts appears to have been that

complainant exhibited sociopathic signs and fabricated his accusation and who the

State should perhaps have spent more time worrying about than Petitioner.

Another reasonable interpretation of facts is that the complainant was a very

troubled youth who lied, stole, frequented pornography and sexually abused his

little sister and consequently did not get along well with his peers or his family

members. Knowing exactly what disgust an accused sexual predator faces, he was

able to go from subject of disgust and derision to victim with a single lie.

       The trial court's ruling meant the jury could not arrive at either of these

reasonable interpretations from the facts because they were deprived of access to

those facts which did not favor the State's preferred narrative. The effect of the

37 Id. at 149, 160-62.
38 Id. at 60-62, 65-69, 106, 148-49, 152, 156, 158, 160.
39 Id. at 160-61.

40 Id. at 46.


                                                 9
trial court's ruling, however, was even more prejudicial than that. When the jury

heard testimony regarding the complainant's lying, stealing, surfing pornography,

counseling and problems with his peers or his family members they were left to

conclude this was the result of the trauma an innocent youth was experiencing due

to the alleged assault by Petitioner.

          At trial the State, through its questioning of the panel, opening statements,

the testimony of its witnesses and its closing arguments characterized Petitioner as

a predator who manipulated the complainant, an ordinary, if emotionally troubled

youth. Independent of the trial court's ruling denying confrontation, Petitioner was

entitled to rebut this mischaracterization on the basis of the false impression

created by the State. Hence, it was the combination of the trial court's ruling; the

State's representations, questions and arguments; and the complainant's testimony

which prevented Petitioner from developing his sole defense at trial.             This

compromised the jury's ability to evaluate the evidence and consequently ensured a

result in favor of the State.

          Were this not enough, the trial court subsequently admitted the testimony of

Glenn McCoy regarding Petitioner's 30-plus-year-old convictions from Sedgwick

County, Kansas, for sexual assault when Petitioner was in his twenties and McCoy

a teen.41 This conviction was ostensibly admitted for the purpose of rebutting the


41
     R.R. 12: 10-15, State’s Trial Exhibit 6.
                                                10
very fabrication defense which the trial court had prevented him from developing

by its ruling. The product of the fundamentally unfair trial which resulted was

three consecutive life sentences.42

         Evidentiary rules such as Texas Rule of Evidence 608(b) and 609 protect

witnesses from having adjudications used against them only where constitutional

priorities do not trump. The risk of a contrary standard, such as that urged by the

State and the Court of Appeals in its en banc opinion risk that the fundamental

right of a fair trial may be deprived in cases in which accusation alone is deemed

legally sufficient and unprincipled complainants see the opportunity to manipulate

law enforcement and courts to their own ends.

         Consequently, the trial court inhibited Petitioner from putting on a full

defense, thereby depriving Petitioner of the fundamental right of a fair trial ensured

by the Fifth and Fourteenth Amendments of the U.S. Constitution and Article I

Sections 10 and 19 of the Texas Constitution. The denial of full and vigorous

Confrontation ensured by the Sixth Amendment of the U.S. Constitution, Article I

Section 10 and 19 of the Texas Constitution and Texas Rules of Evidence 404(B)

and 412 rose to the level of a violation of Due Process. It is plain such error cannot

be deemed harmless under Rule 44.2(a) of the Texas Rules of Appellate Procedure.




42
     C.R. 169-177.
                                         11
       This case would appear to have ramifications that go well beyond the instant

facts. The risk of the ruling of the 89th District Court in this case as precedent in

the Second Judicial District, threatens the fundamental right of a fair trial in

“swearing match” cases. In these cases, an accusation alone is legally sufficient to

support a conviction.43 If prosecutors can use state evidentiary rules meant to

avoid the use of juvenile records under the auspices of protecting children or avoid

undue prejudice in order to keep facts from juries which demonstrate not only a

defense but the sole defense at trial, then Confrontation can be judicially set aside

and with it Due Process as it is conceived by the federal and state constitutions.

                                       ARGUMENT

              “There are few subjects, perhaps, upon which this Court and
       other courts have been more nearly unanimous than in their
       expressions of belief that the right of confrontation and cross
       examination is an essential and fundamental requirement for the kind
       of fair trial which is this country’s constitutional goal. Indeed, we
       have expressly declared that to deprive an accused of the right to
       cross-examine the witnesses against him is a denial of the Fourteenth
       Amendment’s guarantee of due process of law.”

                      - Pointer v. Texas, 380 U.S. 400, 405 (1965).

       It is the law in every courtroom of every jurisdiction of the United States

that “[t]he Constitution is offended if the state evidentiary rule would prohibit [the

accused] from cross examining a witness concerning possible motives, bias and

43Tex. Code of Crim. Pro. 38.07 (West 2013). As this case illustrates, cross examination as the
“crucible of truth” will often be that much more important in such cases. Petitioner's defense
was much weaker prior to the complainant's admissions on the stand.
                                               12
prejudice to such an extent that he could not present a vital defensive theory.” 44

Yet, as the court below recognized in its panel opinion just as the en banc dissent

recognized that this is precisely what the trial court did in this case.

       During the briefing of this matter on appeal the State has repeatedly sought

to characterize the issue before this Court as narrowly limited to the complainant's

2008 adjudication for an instance of the sexual abuse of his sister. 45 However, the

sexual abuse extended over a period of years and occurred both before and after

the complainant accused Petitioner of assault.46

       Just as the 2008 adjudication and any incident giving rise to it was properly

subject to cross examination because the constitutional priorities of Confrontation

and a fundamentally fair trial trump Texas Rule of Evidence 609,47 so specific

instances of conduct governed by Rule 608(b) which are properly subject to

Confrontation when a denial of Confrontation rises to the level of deprivation of

the fundamental right of a fair trial and therefore Due Process. The panel opinion

appropriately recognized what is manifest in this case after a brief review of the

facts: the State’s case was the complainant's unsupported, uncorroborated

allegation and he had motive, means, opportunity and knowledge regarding sexual

matters – specifically as a longstanding sexual abuser – to effectively fabricate an
44 Hammer v. State, 296 S.W.3d 555, 561-62 (Tex. Crim. App. 2009)(emphasis added) citing
Davis v. Alaska, 415 U.S. 308, 316 (1974).
45 Most recently at page 5 of its Reply to the Petition for Discretionary Review.

46 R.R. 7: 149, 168; R.R. 8: 44.

47 Tex. R. Evid. 101(c) (West 2013).


                                            13
allegation because complainant did not receive the Nintendo DS game from

Petitioner.48 That opinion recognized that this case turned on the trial court’s

pretrial ruling that Petitioner could not cross examine the complainant regarding

his adjudication for sexual abuse of his little sister.49 Additionally, the opinion

recognized that Petitioner was independently entitled to rebut the false impression

created by the State in its characterization of the complainant as just another

innocent youth manipulated by a devious predator.50

I. THIS ISSUE IS ABOUT THE ABUSE NOT THE ADJUDICATION

      The significance of the 2008 adjudication for a single instance of sexual

assault in April of that year is that the complainant continued to sexually abuse his

little sister approximately a year after he made his allegation that Petitioner abused

him. The State has treated the 2008 adjudication in its Appellee's brief and Reply

to the Petition for Discretionary Review as though it were the only abuse, and

therefore, the only issue on appeal. The pre-allegation, longstanding sexual abuse

of complainant's sister is approached as though it simply did not exist. That

approach to the facts was subsequently been taken up by the en banc majority,

though the opinion does at least acknowledge the complainant's revelations that




48
   Appendix A, Memorandum Op. at 11-13.
49 Id.
50
   Id. at 7-8.
                                          14
resulted from cross examination.51 At pretrial, the trial court had before it only this

juvenile court adjudication.52 However, the court became fully aware of the scope

of the longstanding abuse during the complainant's voir dire testimony.53

       The State did not provide Petitioner information in its possession regarding

the complainant’s abuse of his sister until this matter was set for trial October

2009.54 Even then, the only information provided was the 2008 adjudication for a

single instance of abuse in April 2008.55              As it would turn out this was the

proverbial tip of the iceberg. At the subsequent pretrial following the continuance,

the State moved to bar cross examination into this abuse.56 In granting the motion

the court observed that the 2008 adjudication post-dated the complainant’s

allegation by approximately a year.57                Therefore, cross-examination into the

complainant’s abuse would have been prejudicial, potentially to both sides, given

the jury could well conclude that the complainant had been transferring the abuse

he suffered to his little sister.

       When the complainant took the stand at trial but outside the presence of the

jury, counsel for the defense inquired of both the complainant and his father into

51 Appendix B, En Banc Op. at 6.
52 Appendix C at 4; R.R. 4: 7. The trial court later actually heard evidence contradicting this
basis for the court’s ruling yet did not reconsider that ruling. See R.R. 7: 58-63.
53 R.R., 7: 160-62.
54
   R.R. 2: 14.
55
   In fairness to the State, this may have been the only instance of which the prosecutor was
aware at the time.
56
   R.R. 7: 61-62; 160-62.
57
   Id. at 160-63.
                                                15
the complainant’s abuse of his sister outside the presence of the jury. 58 Both

witnesses told different and contradictory stories which were initially roughly

similar in terms of general acts and dates but which broke down during the course

of the cross examination.59

       Ultimately, the complainant admitted that he had been abusing his sister for

years before the allegation against Petitioner.60 He admitted that he had been

placed in some form of religious-based counseling for the abuse by his parents.61

He admitted that while he felt relieved by his allegation against Petitioner he did

not really feel bad about what he had done to his sister.62           Of course, the

complainant continued to abuse his sister up to a year after the allegation against

petitioner as the 2008 adjudication demonstrates.

       This placed the trial court in a very different position than it had been at the

time of its pretrial ruling.           The court had now heard testimony from the

complainant’s own mouth that the abuse of his sister had been ongoing,

longstanding, and had preceded his allegation against Petitioner by years. This

abrogated the court’s previous justification for not allowing cross examination into

the abuse. The trial court, however, did not reverse course.



58
   Id. at 7: 58-62.
59
   Id. at 61-62, 160-62.
60
   Id. at 160-62.
61
   Id.
62
   Id. (characterizing his guilt for abusing her as “minute”).
                                                 16
          The court had already heard testimony in the presence of the jury that the

complainant had been looking at internet pornography “numerous times,” was

dealing with social alienation by peers and had problems getting along with his

family, was depressed and had emotional problems for which he been in

counseling, and had been shoplifting and demanding trendy video games from his

father and Petitioner.63

          Consequently, with the complainant’s revelation on voir dire, it suddenly

became apparent in the courtroom that the jury’s rational conclusions regarding the

testimony they had been allowed to hear took on a very different aspect in light of

the knowledge that the complainant had been sexually abusing his sister for years.

With the knowledge of longstanding, pre-allegation abuse, the jury could and

likely would conclude that the Petitioner had the motive, means and opportunity as

well as specific knowledge necessary to effectively fabricate an allegation to

transform himself from despised abuser to innocent, traumatized victim or in

retaliation for Petitioner giving the DS game to the youth group instead of to

complainant. Complainant stated that he was “pretty angry” that he did not get the

DS game from Petitioner.64 In the absence of this knowledge of longstanding

abuse on the other hand, the complainant appeared to have been an emotionally

struggling boy vulnerable to the machinations of a sexual predator, whose

63
     R.R. 7: 142, 145, 148-49, 155, 158.
64
     Id. at 146.
                                           17
struggles and emotional problems were likely the result of the trauma of

Petitioner’s sexual assault.65

       In other words, the ultimate outcome of deliberations came down to the

court’s willingness to reform its pretrial ruling in light of the new facts before it.

The court did not and gave no explanation despite the fact that the rationale for its

prior ruling manifestly no longer existed. Remarkably, the court went on to allow

testimony regarding Petitioner’s 30-plus year old adjudication for sexual abuse of a

teenager when he was in his twenties. The court’s stated reasoning was that

Petitioner had asserted fabrication even though he had not been allowed to develop

such a defense and had therefore opened the door to rebuttal.

II. THE EXCLUDED TESTIMONY WAS RELEVANT BECAUSE THE
   LOGICAL CONNECTION/NEXUS BETWEEN THE COMPLAINANT’S
   LONGSTANDING SEXUAL ABUSE OF HIS LITTLE SISTER AND
   THE ALLEGATION IS MANIFEST.

       The court below sitting en banc deems inquiry into complainant's sexual

abuse of his sister as not relevant.66 Texas Rule of Evidence 401 defines "relevant

evidence" as any evidence “having any tendency to make the existence of any fact



65
   This longstanding abuse may also have shed light onto the peculiar investigation performed by
the Burkburnett Police Department in this case. The lead investigator in that case did not
interview the church youth minister to whom the complainant made the initial allegation, she
took on for herself the role of forensic interviewer though her experience in this capacity was
limited and the standard practice is to refer these matters to Patsy’s House, a regional facility that
performs these interviews. Id. at 8: 42, 56-57, 65-66. Even the complainant’s mother and
minister of the church were apparently never interviewed. Id. at 44, 66, 110, 160.
66
   Appendix B, En Banc Op. at 14, note 2.
                                                 18
that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.”

          This case was at its core a “swearing match.” These cases turn on credibility

because the prosecution’s case relies entirely on the testimony of its complaining

witness and the defense upon proof of fabrication through cross examination. The

jury is the sole arbiter of witness credibility. Consequently, this Court has held

that the Texas and federal constitutions mandate “great latitude when the evidence

deals with a witness’s potential bias, motive or interest to testify in a particular

fashion.”67 Similarly, this Court has held that the Rules of Evidence should be

used “sparingly to exclude relevant, otherwise admissible evidence that might bear

on the credibility of the defendant or complainant.”68

          A. The State's Position as Adopted by the En Banc Majority Does Not
             Address the Issue Properly before this Court.

          The en banc opinion regarding counseling and which side “opened a door”

is a red herring. It is of no importance which party first brought up counseling.

Properly at issue is: (1) the deprivation caused by the trial court's ruling barring

inquiry into the complainant's longstanding sexual abuse of his little sister and (2)

the State’s strategy throughout the course of trial in depicting this case as one




67   Hammer, 296 S.W.3d at 561-62 (footnotes omitted).
68   Id.
                                               19
involving a typical, innocent 12-year-old boy manipulated and then victimized by a

devious predator camouflaged by his position in a local church.

          First, the longstanding abuse and the motive, means, opportunity and

knowledge it demonstrates is the issue, not the counseling the complainant

received for it and/or for other problems. Counseling has become a distraction on

appeal not only because it allows the State to avoid the issues but because it was

counseling that the trial court actually allowed the parties to inquire about when it

barred cross examination as to the abuse. Counseling is significant only in that it

was in the course of questioning about counseling that the complainant made his

revelation.69 From the point of the trial court's ruling barring cross examination the

constitutional deprivation requiring reversal was complete.         Development of

Petitioner's sole defense at trial was barred and therefore admission of the

testimony of Glen McCoy regarding Petitioner's 30-plus year old conviction should

have been adjudged inadmissible to rebut the fabrication defense.

          Both rulings were an affront to the notion of Due Process through

fundamental fairness.     No mention of counseling need ever have occurred to

warrant reversal on this basis and no discussion of false impressions or opened

doors need be explored. This matter can and should be resolved on the basis of the




69
     R.R. 7: 160-62.
                                         20
trial court's ruling alone to provide clarity to courts dealing with such attempts to

scuttle Confrontation in swearing match cases.

          The State proceeded at trial by portraying complainant as a typical youth,

reluctant to talk about sexual matters, but who had been taken advantage of and

manipulated by a devious predator concealed by his role in a local church. This

was elaborately and accurately developed in briefing on this issue and addressed in

the dissent to the en banc opinion.70

          B. Complainant’s longstanding abuse of his sister was logically
             connected to the abuse he alleged against Petitioner because it
             showed his motive, means, opportunity and knowledge to fabricate
             the allegation.

          The complainant’s longstanding sexual abuse of his sister and his allegation

against Petitioner manifestly demonstrated a logical connection between the

accusation and disgust the complainant faced because it demonstrated he had

motive, means and opportunity to fabricate the allegation as well as the specialized

knowledge to effectively do so.

          1. The prosecution created a false impression by characterizing
             complainant as a typical, even innocent youth while vilifying Petitioner
             as a manipulative, devious predator.

          First, contrary to the characterization of the en banc majority, the State bears

responsibility for the characterization of its complainant as a typical, innocent

youth manipulated and assaulted by a devious wolf in sheep’s clothing at the

70   Appendix C, En Banc Dissent. at 3-6.
                                             21
Church of the Nazarene.71           The State’s case in chief was the complainant’s

testimony. By placing the complainant on the stand and presumably having some

idea of the substance of how he would testify, the State shares responsibility for

any false impression he might create.

       Further, during jury selection, the prosecutor asked panelists about their

training or experience dealing with sexual abuse.72 The prosecutor asked if a

panelists experience confirmed a boy might be reluctant to admit it or to talk about

it. This was clearly creating a false impression because the implication is that the

complainant was shy and embarrassed due to his innocence and because the

prosecutor knew very well that this witness was anything but an ordinary twelve

year old. Additionally, the State asked a panelist what evidence she might expect

to see in a child sexual abuse case. The prosecutor then engaged in a colloquy with

the panelist regarding the likelihood of evidence with respect to counseling,

impliedly due to a youth having been sexually abused.73 This is contrary to the en

banc majority’s characterization in its opinion.74



71
   Appendix B, En Banc Op. at 10.
72
   R.R. 6: 67-68, 74-75
73
   Id. at 68-75.
74
   Appendix B, En Banc Op. at 10. The en banc opinion goes on to point out that “Johnson’s
counsel asserted during closing arguments that [the complainant’s] ‘emotional counseling’”
rather than for his sexual abuse of his sister. Id. This is a mischaracterization which ignores the
complainant’s own admission that he was in counseling for the sexual abuse of his sister and his
parents had put him there. R.R. 7: 160-62. However, even were this so, this would only matter if
the appellate court were determining whether there existed an interpretation of facts sufficient to
                                                22
       The prosecutor went on to ask multiple panelists about how children might

be likely to act “after they have been victimized.”75 The prosecutor then went into

intra-familial sexual abuse, issues of a child’s credibility, and the effect of abuse on

a child.76 Therefore, counseling had been raised as an issue by the State and a false

characterization of the complainant and Petitioner made by the State as early as

voir dire.      Furthermore, complainant testified that he had been watching

pornography “numerous times” from the age of ten.77 According to complainant’s

father, the family lived in Delaware at that time, before complainant ever met

Petitioner.78

       In opening the prosecutor asked the jury to “do [their] best to look at this

through the lens of a 12, 13-year-old boy” and through the eyes of a fifty-year-old

deviant pervert.79 He characterized Petitioner as “cunning and opportunistic” and

as “deceitful.”80 The prosecutor argued in closing in a similar vein.81 Hence, the

State independently 'opened any doors' that could possibly have been opened.

From that point the Defense was entitled to inquire into the abuse of the

complainant’s little sister in order to rebut the false impression created by the State.

support a verdict. Here, the analysis is whether the trial court was justified in keeping one side
of the facts from the fact finder.
75
   R.R. 6: 73.
76
   Id. at 48-51.
77
   R.R. 7: 128.
78
   R.R. 7: 45.
79
   Id. at 16-17.
80
   Id.
81
   Appendix B, En Banc Op. at 11.
                                                23
       2. It was Petitioner’s constitutional right to cross examine the complainant
       regarding the relationship of any mental condition for which he received
       treatment to his motive to fabricate the allegation.

       Second, the en banc majority reasons that because Petitioner was able to ask

about the complainants’ theft, pornography exposure, poor relations with peers and

family, that he wanted video games from his father and that he was in counseling

for ‘emotional problems,’ Petitioner had an adequate opportunity to show

Petitioner’s mental health.82 This ignores the purpose of allowing inquiry into the

mental health of a complainant articulated in Virts v. State.83

       In that case, this Court held that the details of the condition and treatment

for which a complainant was subject to treatment were subject to cross

examination because those details and condition could demonstrate a motive to

fabricate.84 Allowing superficial cross examination which merely shows that the

complainant had some sort of ‘emotional problems’ and was in counseling for “just

dealing with stuff”’ and “everyday teenager stuff” and “he was depressed

somewhat,” and ‘the usual teenage stuff’ cannot be said to constitute cross

examination into any condition and treatment which might provide an a motive to

fabricate.85




82
   Id. at 11-12
83
   739 S.W.2d 25, 30 (Tex. Crim. App. 1987).
84
   Id. at 28.
85
   R.R. 7: 61.
                                               24
       Further, the en banc majority ignores that the complainant got on the stand

in voir dire and rebutted these very characterizations for his counseling, stating that

he was in counseling for repeatedly sexually abusing his little sister over a period

of years prior to the allegation and that his parents put him there for that reason.86

       3. Petitioner was entitled to cross examine the complainant when he put
       his credibility in issue by contradicting his own prior testimony and that of
       his father.

       Third, the en banc majority next focused narrowly on the complainant’s

statements that his allegation against Petitioner was a “weight off his shoulders”

but he felt “minute guilt” at years-long sexual abuse of his sister.87 The majority

stated that “the connection between his relief after telling someone about Petitioner

and his guilt about this sister is tenuous at best.”88 This recharacterizes the issue of

logical connection/nexus articulated in Irby v. State by placing it on the

relationship between these two inconsistent statements rather than on the

relationship of the years-long abuse of complainant’s sister to his allegation.89

       Petitioner was entitled to cross examine the complainant when he made two

logically inconsistent statements, one in front of the jury and one outside their

presence because this put his credibility in issue. “The proper scope of cross-

examination includes ‘all facts and circumstances which, when tested by human

86
   R.R. 7: 160-62.
87
   Appendix B, En Banc Op. at 12.
88
   Id.
89
   327 S.W.3d 138, 145-54 (Tex. Crim. App. 2010).
                                            25
experience, tend to show that a witness may shade his testimony for the purpose of

helping to establish one side of the cause only.’”90 Feeling relief by accusing

someone is clearly not consistent with “not” feeling guilty by hurting someone.

This put the complainant’s credibility in issue.

       The lower court cites Chitwood v. State, for support.91 That case involved

an Appellant’s attempt to show that two complainants who had alleged sex acts

against him had had sex with another adult male on another occasion though one

disputed the incident.92 There was nothing more. The court concluded Appellant

merely sought to attack the complainants’ general credibility and that therefore the

cross examination could be irrelevant, embarrassing and potentially traumatizing.93

       Hence, this line of cross examination was barred due to the utter absence of

any articulable motive constituting a “viable defensive theory” within the meaning

of Texas Rule of Evidence 412(b)(3) present under the facts of that case.94 Here,

the totality of facts clearly suggest motive, means, opportunity and knowledge.

The complainant was sexually abusing his sister for years before the allegation and

up to a year after.95 At the very least his parents and sister have to have known


90
   Koehler v. State, 679 S.W. 2d 6, 9 (Tex. Crim. App. 1984) citing Jackson v. State, 482 S.W. 2d
864, 868 (Tex. Crim. App. 1972) (emphasis added).
91
   Appendix B, En Banc Op. at 12 citing 350 S.W.3d 746, 748 (Tex.App.—Amarillo 2011, no
pet.).
92
   Id. at 47.
93
   Chitwood, 350 S.W.3d at 748-49.
94
   Id. at 748, citing Hammer v. State, 296 S.W.3d 555 (Tex. Crim. App. 2009).
95
   R.R. 7: 149, 162-63.
                                               26
about it and he testified they did.96 He did not get along with his mother and was

not on speaking terms with her, was distant from his father, and (presumably) his

sister.97

        He was having trouble with peers at school.98 His father characterized this

as “bullying” though it seems obvious that there can be sound reasons your peers

just do not like you very much.99 He had been caught shoplifting video games he

had been demanding from his father and Petitioner.100 He and Petitioner had

confided in one another.101 He was in counseling for the years-long sexual assault

of his sister which his parents had arranged for him at least in part for this

reason.102 He may or may not have been under investigation with the Burkburnett

Police Department or cooperating with them, though either might explain the

peculiar manner in which the investigation was handled.

        An allegation of sexual assault timed as it was could have transformed the

complainant from despised, sociopath and incestuous predator to pitied victim

whose struggles were the result of Petitioner’s heinous assault. It could have

transformed him from suspect to cooperating informant. It is difficult to conceive



96
   Id.
97
   Id. at 60, 106, 148.
98
   Id. at 61.
99
   Id. at 59, 61-62, 65.
100
    Id. at 58-59.
101
    Id. at 118.
102
    Id. at 160-63.
                                         27
a set of facts that suggest a more viable defensive theory within the meaning of

Hammer v. State than those present here in regards to swearing match cases.

       Again, the en banc majority depends upon an inaccurate version of the facts

to justify its conclusion that complainant’s testimony presents no motive to

fabricate. That is, that the only instance of abuse was the 2008 adjudication which

occurred after complainant’s allegation.103 This utterly ignores the complainant’s

own testimony.104 Essentially, the en banc majority picks and chooses among the

facts in order to determine what it, as fact finder, elects to believe.

       4. The superficial cross examination permitted into shoplifting, lying,
       access to pornography and the like did not constitute Confrontation
       sufficient to allow Petitioner to develop a complete defense.

       Fourth, the en banc majority reasons that because the cross examination that

was allowed as to the “being somewhat depressed,” theft, problems socializing,

and the like (“a glut of evidence”), Petitioner had adequate opportunity to show the

complainant had motive to “get attention” in order to “get himself out of trouble in

the eyes of his parents.”105 Limiting Petitioner’s defense in this manner effectively

eviscerated Petitioner’s core defense of fabrication leaving Petitioner to present

what the court would allow. The United States Supreme court ruled in Holmes v.

South Carolina that the Sixth Amendment guarantees defendants the right to


103
    Appendix B, En Banc Op. at 6.
104
    R.R. 7: 160-62.
105
    Appendix B, En Banc Op. at 12.
                                           28
present a complete defense.106 With such an incomplete defense, Petitioner was

left with hoping the jury would connect the dots and conclude there was something

more going on with this complainant.

       Of course, parents might understandably be distracted from whatever recent

poor behavior a child has engaged in that the child claims to have been sexually

assaulted.    That motive would seem to be potentially present in every case.

However, it is not in every case that the complainant has clear motive to redirect

what the totality of the facts suggest is considerable disgust which transformed the

complainant’s life or where he had considerable motive to redirect immediate

scrutiny given he would continue to sexually abuse his sister.107

       The majority additionally argues that there is no logical connection or nexus

between an allegation and motive to fabricate just because it can be suggested it

would distract attention from a complainant’s other acts or because it would focus

attention on the complainant as cherished child rather than the child’s bad

behavior. The opinion invokes the Irby logical connection requirement for this

proposition.108 However, this characterization again ignores the facts of this case

and supplants them with those of another case involving an attempt merely to

engage in a mud-slinging expedition involving a witness’ “general credibility.”


106
    Holmes v. South Carolina, 547 US 319, 324 (2006).
107
    R.R. 7: 149, 160-62.
108 Appendix B, En Banc Op. at 13.


                                             29
            5. Cross examination that was allowed into the complainant’s having
            surfed pornography did not constitute Confrontation sufficient to allow
            Petitioner to develop his defense.

            Fifth, the en banc majority argued that because Petitioner was able to ask

about the complainant’s having accessed Internet pornography, he had adequate

opportunity to show the complainant’s knowledge of sexual matters in order to

effectively fabricate an allegation.109 Again, the majority recharacterizes this case

as a Chitwood-like attack on general credibility while utterly ignoring the facts.

            Having oneself sexually abused a victim for years and been subject to the

scorn and opprobrium that accompanies such conduct is distinct from doing what

virtually every 12-year-old boy who can get online is apt to do at some point.

These two things are distinct. Being a sexual abuser provides knowledge and

therefore means to effectively fabricate an allegation.        To deem otherwise is

contrary to common sense and supplants the role of the jury.              As a direct

consequence, the trial court’s ruling barring Confrontation was superseded by the

constitutional priority of the fundamental right to a fair trial from the point the

complainant admitted to the longstanding, pre-allegation abuse of his sister. This

Court has recognized independent bases over time under which Confrontation is

required in swearing match cases. It is a testament to the dramatic deprivation of

Due Process in this case that several of these bases are squarely implicated in this


109
      Id.
                                            30
case. Conversely, if the State is correct, then counsel for Petitioner was bound to

sit mute and these swearing match cases going forward are reduced to merely the

appearance of trial on the merits. In Texas, we will then have the portrayal of Due

Process but not the actuality. That is what a deprivation of Confrontation does to

everything a trial is about, as this Court recognized in Pointer.110

III. THE EN BANC HOLDING RELIES ON READING OF THE RECORD
      WHICH SELECTIVELY IGNORES INCONVENIENT FACTS.

       Although the En Banc majority at least acknowledges that the complainant

testified he had been sexually abusing his sister for years before his allegation

against Petitioner, it ignores this testimony in arriving at its holding. Again, Irby

only governs the 2008 adjudication which demonstrates the complainant's motive,

means, opportunity and knowledge to fabricate. This appeal is not narrowly about

the complainant's 2008 adjudication for sexual abuse of his little sister. It is

complainant's longstanding sexual abuse of his little sister, which occurred both for

years before his allegation and for at least approximately a year afterwards, which

is at issue.     Obviously, the July 2008 incident which finally produced an

adjudication is afterward.111 In his own words, the complainant had been sexually

abusing his sister for years by 2007 when he made the allegation of abuse by


110
   Pointer, 380 U.S. at 405.
111
   The assault occurred in the April to June 2007 time frame. This is reflected in the indictment
and was the complainant's and father's own testimony although counsel for Petitioner at trial did
erroneously say “November 2007” several times during cross examination. R.R. 7: 83, 89, 122.
                                               31
Petitioner.112 The State and en banc majority consistently cite to the complainant's

testimony earlier in the record together with his father's to the effect that this abuse

was more limited in scope, ignoring the complainant’s later testimony on cross

examination outside the presence of the jury.113

       In a similar vein, the opinion inaccurately references the State's Brief and

Reply by stating complainant's counseling in fall 2007 “was based solely due to his

relationship with his parents.”114 Again, the complainant testified outside the

presence of the jury repeatedly that this counseling was for sexual abuse of his

sister and that his parents had arranged it for that purpose.115

       The complainant made clear that he was in counseling for sexual abuse of

his sister before he made his allegation against Petitioner in 2007.116 Again, there

was previous contradictory testimony on this from the complainant's father. 117 It

seems clear from the adjudication of the April 2008 abuse that the complainant was

still molesting his sister up to a year after that allegation was made.

       The danger of this practice of choosing only the most convenient facts to

support one's position is that, from a hurried, skin-deep reading of the record, it

actually gives the appearance that complainant's abuse of his sister occurred after


112 R.R. 7: 160-62
113 R.R. 61-62, 160-62.
114 Appendix B, En Banc Op. at 10.

115 R.R. 7: 162.

116 Id.

117 Id. at 61-62


                                          32
the alleged assault by Petitioner and so makes the complainant appear to have been

perverted into the status of a sexual abuser by his exposure to Petitioner.

      Just to ensure that a complete reading of the record is the basis for this

honorable Court’s determination, the relevant portion of the complainant’s own

testimony from Volume Seven, pages 160-162 [emphasis added] follows:

         "[Petitioner]:   You said that you felt -- and I don't
                          know what your words were, but you
                          felt like you were relieved after you
                          told all of this [the allegation against
                          Petitioner] to Jimmy and the authorities
                          ties, correct?

         "[Complainant]: Yes.

         "[Petitioner]:   You had been sexually abusing your
                          sister for a number of years, had you
                          not?

         "[Complainant]: Yes

         "[Petitioner]:   Did you tell them every time that you
                          did that?

         "[Complainant]: Who?

         "[Petitioner]:   You parents?

         "[Complainant]: Yes. They knew.

         "[Petitioner]:   Every time?

         "[Complainant]: Yes. I went through treatment so
                         they had to know.



                                          33
          "[Petitioner]:      Well, I'm talking about in the fall of
                              2007.118

          "[Complainant]: Back then? No they did not know.

          "[Petitioner]:      Okay. And did you have -- I'm trying to
                              -- did you feel guilt over that?

          "[Complainant]: Yes.

          "[Petitioner]:      In the fall of 2007?

          "[Complainant]: Minute guilt, yes.

          "[Petitioner]:      Minute guilt?

          "[Complainant]: Yes.

          "[Petitioner]:      I'm trying to figure out how you will
                              feel this emotion is lifted off you
                              when somebody allegedly did some
                              thing to you, but you feel minute guilt
                              over your sister?

          "[Complainant]: Was that a question?

          "[Petitioner]:      Yes.

          "[Complainant]: I don't know.

          "[Petitioner]:      Okay. You -- you're not a sex addicts,
                              whether it be through watching
                              pornography or abusing your sister or
                              what you claim to have happened
                              with Joe, they didn't make you feel
                              guilt at all, did they?

118
  Counsel for Petitioner mistakenly refers to the date of the alleged assault as fall or November
2007. It is undisputed that the alleged assault took place in the April to June 2007 time frame.
See supra n. 35. The date of indictment lists April 10, 2007. See C.R. 2.
                                               34
"[Complainant]: Yes, they did.

"[Petitioner]:   You didn't feel guilty with what you
                 did with Joe, did you? What you
                 claim you did with Joe?

"[Complainant]: Yes, I did.

"[Petitioner]:   Alright, and after you released this
                 information and were relieved and felt
                 better about it, you continued to
                 abuse your sister, correct?

"[Complainant]: It wasn't the end, but they put -- my
                parents put me in counseling for
                that reason. That's why I was in
                counseling at the Christ Care thing.

"[Petitioner]:   In the -- in the Fall of 2007?

"[Complainant]: Yes, that's why I was in counseling.

"[Petitioner]:   And that's one of the things you
                 were struggling with in November
                 of 2007?

"[Complainant]: Yes.

"[Petitioner]:   And that was contributing to your
                 emotional difficulties?

"[Complainant]: A little bit, yes.

“[Petitioner]:   I’ll pass the witness your honor.


“REDIRECT EXAMINATION



                                 35
             “[Prosecutor]:     Heath, I want to – I want to clear up any confusion.
                                Are you saying that you were struggling with the
                                sexual abuse with Joe during November 2007 or what
                                was happening at home with your sister.

              “[Complainant]:   Both

             “[Prosecutor]:     When you started counseling, your parents didn’t
                                know about the sexual abuse with your sister or Joe,
                                did they?

              “[Complainant]:   They did not know about the sexual abuse with
                                Joe, but they knew about the sexual abuse of my
                                sister. They had guessed what was happening and
                                they wanted it to stop.

              “[Prosecutor]:    Okay.

              “[Complainant]:   And they were trying to find out through the counselor
                                if I had or not.”


          The complainant also testified to the other problems he was having and for

which he was in counseling well before any allegation against Petitioner.119 The

complainant's father had already testified outside the presence of the jury that the

complainant had been in counseling at Christ Home Place Ministries (CHPM) in

May 2007 for issues which did not include the complainant's sexual abuse of his

little sister which, in his own words, would have been already years longstanding

at any point in the year 2007:




119
      Id. at 156-60.
                                           36
"Petitioner:   Now, was your son undergoing any type
               of counseling or therapy in the fall of
               2007?

"Witness:      Yes.

"Petitioner:   Where at?

"Witness:      Christ Home Place

"Petitioner:   And what was it for?

"Witness:      Just dealing with things.

"Petitioner:   What things?

"Witness:      School. I believe he was depressed
               somewhat.

"Petitioner:   What else?

"Witness:      And the – I believe the pornography thing
               came – thing came up.

"Petitioner:   Okay. Was he being treated because of
               sexual abuse to his sister?

"Witness:      No.

"Petitioner:   What was he depressed about?

"Witness:      I have no idea, just everyday teenager
               stuff, I guess.

"Petitioner:   What problems was he dealing with at
               school that he had to go to Christ Home
               Place Ministries?




                              37
           "Witness:           Kids were bullying him. They would – I
                               know on one instance, some kid came up
                               behind him and ripped his new hoodie.

           "Petitioner:        Okay. Would it be fair to say that his emotional
                               state in November 2007 was not good?

           "Witness:           He was probably dealing – he was dealing with
                               some stuff.

           "Petitioner:        Okay. Would you – so his – he was depressed, he
                               was having relationship problems with his mother,
                               he was getting counseling, he was being bullied at
                               school. You would agree with me, he – he was
                               having emotional problems in November 2007
                               when he made this outcry?

           "Witness:           I guess that would be plausible to say.

           "Petitioner:        In November – in the fall of 2007, had you
                               caught him having any kind of sexual contact
                               with his sister?

           "Witness:           When?

           "Petitioner:        The fall of 2007.

           "Witness:           No. I'm sorry, let me take that back. No. It
                               was not May – not fall of 2007.”120


       The complainant's father goes on to testify that he could not remember when

he and his wife placed their son in CHPM counseling, how long he had been in



120It seems possible that the mistaken reference to November may account for the complainant's
father's denial that his son was in fact in counseling for sexually abusing his sister at the time of
the allegation, as the complainant testified. There were at least two forms of counseling and all
this had happened some five years' prior.
                                                 38
treatment there, or if it preceded April 2007, the earliest possible point at which the

complainant testified the alleged assault could have occurred.121 The complainant

had testified he could not remember when the assault occurred and that it could

have been in April, May or June 2007, the time frame when the complainant and

State place the assault.122

           It is undisputed that court-ordered counseling likely also occurred in 2008

after the State adjudicated an instance of the sexual abuse of complainant's little

sister that had already been going on for years by the time of the allegation. There

can be no question after a reading of the testimony which was kept from the jury

that the complainant's sexual abuse of his little sister was occurring well before his

allegation of assault by Petitioner. Petitioner was having a number of problems to

include his lying, use of pornography and the fact that he did not get along with his

peers and family members.

           These problems may well be the symptoms of a young sociopath dealing

with the opprobrium directed at a sexual predator or even the result of sexual abuse

tolerated within the family or even passed down. It may suggest motivations

stemming from a number of things other than sexual assault by Petitioner. It can

never be known because Confrontation was denied, leaving the State free to


121   Id. at 66.
122   Id. at 89, 122-24.


                                            39
characterize the complainant as just another youth victimized by a pervert. At the

very least we know that the complainant was troubled prior to ever meeting

Petitioner.      It is clear that by 2007 the complainant had motive, means and

opportunity to relieve himself of the opprobrium he was experiencing for sexually

abusing his sister and the knowledge to fabricate and allegation effectively so as to

portray himself as a victim, rather than a predator.

IV.       THE TRIAL COURT’S WIDE LATITUDE TO DETERMINE
          CONSTITUTIONALLY PROTECTED CONFRONTATION DOES
          NOT INCLUDE DEPRIVING PETITIONER OF A “VIABLE
          DEFENSIVE THEORY” LET ALONE HIS SOLE DEFENSE AT
          TRIAL.

          This Court has held that while the Texas and federal constitutions mandate

“great latitude when the evidence deals with a witness’s potential bias, motive or

interest to testify in a particular fashion” and the Supreme Court of the United

States “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[,]” “[t]he

Constitution is offended if the state evidentiary rule would prohibit [the accused]

from cross examining a witness concerning possible motives, bias and prejudice to

such an extent that he could not present a vital defensive theory.” 123 Specific to

admissions of juvenile adjudications, this Court has held that the defendant must




123   Hammer v. State, 296 S.W.3d at 561-63.
                                               40
demonstrate “logical connection” or “nexus” between the allegation and the

witness' past sexual conduct.124

       It is true Petitioner could say “the complainant fabricated his allegation” all

he wanted. However, the trial court's ruling barred him from asserting the defense.

Perversely and ironically, the ruling made any attempt to ask the complainant

about anything at all exacerbate the State's portrayal of complainant as a young

innocent manipulated by a devious predator.

       In determining whether a defense was asserted/developed, asking about a

boy's exposure to Internet pornography, “emotional problems,” shoplifting, or

difficulty getting along with family and peers can hardly be likened to the

opportunity to show that the complainant was and had been (and as it turned out

would continue to) sexually abusing his little sister for years, that this was the

reason he did not get along well with his family members, potentially with his

peers, and that his theft and lying and blackmailing of Petitioner to get this

handheld game might well have been indicative and symptomatic of the fact that

he was a sociopath who knew firsthand the scorn of being a sexual abuser; how

effectively to go from being a despised predator to a victim with a falsified outcry.

124Irby, 327 S.W.3d at 145-54, (discussing law regarding admission of victim’s status as
probationer and concluding evidence not admissible because appellant failed to show “logical
connection” between the victim’s testimony about his sexual encounters with appellant and his
separate probationary status); cf. Arriola v. State, 969 S.W.2d 42, 43 (Tex. App.—Beaumont
1998, pet. ref’d) (holding evidence of specific instances of victim’s past sexual behavior
inadmissible because appellant failed to establish a “nexus between that conduct and a motive for
bringing false accusations”).
                                               41
       Van Arsdall provides that the trial court retains wide latitude to impose

reasonable limits on cross-examination “based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.”125 However, this can

never be appropriate in a swearing match case where the accused is deprived of

cross examination into subject matter that suggests motive, means and opportunity

to fabricate.

       A violation of the Confrontation Clause is subject to a harmless error

analysis.126 In the context of improper limitation of cross-examination, the Texas

Court of Criminal Appeals applies the three-pronged test established in Delaware

v. Van Arsdall.127       First, the appellate court must assume that the damaging

potential of the cross-examination was fully realized.128                  Second, with that

assumption in mind, the appellate court must review the error in connection with

the following factors: (1) the importance of the witness’s testimony in the

prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or

absence of evidence corroborating or contradicting the testimony of the witness on

material points; (4) the extent of cross-examination otherwise permitted; and (5)



125 Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).
126 Tex. R. of App. Pro. Rule 44.2(a); Shelby v. State, 819 S.W. 2d 544, 546 (Tex. Crim. App.
1991) citing Van Arsdall, 475 U.S. at 684.
127
    Shelby, 819 S.W. 2d at 547.
128
    Van Arsdall, 475 U.S. at 684.
                                               42
the overall strength of the prosecution’s case.129 Finally, in light of the first two

prongs, the appellate court must determine whether error was harmless beyond a

reasonable doubt.130 Applying this standard to the constitutional harmless analysis,

there was no biological, medical or forensic evidence presented at trial. The

complainant's outcry that Appellant had molested him was delayed for some six to

seven months. There were no other eyewitnesses to these sexual allegations and

there was nothing adduced at trial to corroborate the allegation. The complainant's

credibility was the main issue as to the weight of his testimony. That credibility

was in question after his testimony outside the presence of the jury when he was

impeached, contradicted himself, and made logically inconsistent statements.

Therefore, there can be no doubt that this error was not harmless beyond a

reasonable doubt to Appellant or that any considerations of efficiency or protection

of the witness can trump the constitutional priority of a full and unfettered cross

examination.


                                   CONCLUSION

        It is difficult to overstate the impact in this case of the trial court’s ruling

denying Confrontation. It cut off at the knees Petitioner’s sole defense at trial. It

excluded entirely any inquiry into the subject area which would have demonstrated


129
  Id.
130
  Id.
                                           43
the motive, means and opportunity the complainant had to fabricate the allegation

against Petitioner as well as to demonstrate that he was a very different person than

the State, the complainant and his father made him out to be during voir dire and

trial.

         Hence, the blanket denial of cross examination prevented the Petitioner his

opportunity to develop a complete defense of fabrication, his sole defense at trial.

Yet, the trial court allowed the extremely prejudicial testimony of the victim of

Petitioner’s convictions in the early 1980s to rebut the defensive theory that was

never fully developed. This violated his right of Confrontation under the Sixth

Amendment of the U.S. Constitution and Article I Sections 10 and 19 of the Texas

Constitution. It additionally denied him Due Process of Law under the Fifth and

Fourteenth Amendments of the U.S. Constitution and Article I Sections 10 and 19

of the Texas Constitution. This denial was additionally contrary to Texas Rules of

Evidence 404(b) and 412(b)(1)(C).

                              PRAYER FOR RELIEF

         WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully prays

this Court grant discretionary review and, either summarily or after full briefing on

the merits reverse the ruling of the trial court on both counts of aggravated assault.

                                        Respectfully submitted,

                                        /s/ Jeff Eaves
                                        Jeff Eaves
                                          44
State Bar No. 24045820
900 8th St., Ste. 1400
Wichita Falls, Texas 76301
(940) 322-2002
Fax: (940) 322-1001

/s/ Todd Greenwood
Todd Greenwood
State Bar No. 24048111
813 8th St. Ste. 550-K
Wichita Falls, Texas 76301
Tel./Fax: (940) 689-0707

ATTORNEYS FOR PETITIONER




 45
                         CERTIFICATE OF SERVICE

      I hereby certify that on this 8th day of June 2015, a true and correct copy of
the foregoing Petition for Discretionary Review was hand delivered to Maureen
Shelton, District Attorney and Carey Jensen, Assistant District Attorney, Wichita
County Courthouse, Wichita Falls, Texas 79301 and emailed to Lisa C. McMinn,
State Prosecuting Attorney, P.O. Box 12405, Austin, Texas 78711, at
information@spa.texas.gov.

                                       /s/ Jeff Eaves

                      CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4, the undersigned certifies that this brief complies
with the type-volume limitations.

1. Exclusive of the exempted portions, this brief contains 10,192 words as
indicated by the word count function of Microsoft Word.

2. This brief has been prepared in proportionately spaced typeface in Times New
Roman, 14 pt. font except for footnotes which are in 12 pt. font.
3. If the Court requests, the undersigned will provide a print version of the brief
and/or copy of the word or line printout.

4. The undersigned understand a material misrepresentation in completing this
certificate, or circumvention, of the type-volume limits, may result in the Court’s
striking the brief and imposing sanctions against the person signing the brief.

                                       Respectfully submitted,

                                       /s/ Jeff Eaves
                                       Jeff Eaves

                                       /s/ Todd Greenwood
                                       Todd Greenwood




                                         46
APPENDIX A




    47
APPENDIX B




    48
APPENDIX C




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