
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-06-00038-CR


William Edward Davis, Appellant

v.

The State of Texas, Appellee




FROM THE DISTRICT COURT OF LLANO COUNTY, 33RD JUDICIAL DISTRICT
NO. CR5502, HONORABLE DONALD LEONARD, JUDGE PRESIDING


M E M O R A N D U M  O P I N I O N

	The appellant, William Davis, was accused of sexually abusing his seven-year old
granddaughter in 2003. (1)  At the time, the complainant, her parents, and her siblings were living in
a trailer behind the appellant's residence.  Although they resided in a separate dwelling, the
complainant and her siblings spent a great deal of time at the appellant's house and often spent the
night there.  The complainant also alleged that her father sexually abused her, and her father was
eventually indicted for the alleged offense.  However, the complainant's father unexpectedly died
shortly after his indictment.  As a result of all of the allegations, the complainant was removed from
the custody of her parents.  
	During the appellant's trial, William Smith, a licensed professional counselor,
testified regarding his therapy sessions with the complainant.  In his testimony, Smith stated that the
complainant informed him that her grandfather and her father had both sexually abused her.  Another
counselor, Sharon Beam, also testified regarding her therapy sessions with the complainant.  Beam
stated that the complainant had related that her father and her grandfather had both sexually abused
her.  In addition, Beam testified that the complainant told Beam that individuals other than the
complainant's father and grandfather had abused her but that the complainant later admitted that
those allegations weren't true.  
	In a motion in limine, the State asked the court to instruct the appellant not to refer
to "[a]nything concerning evidence of [the complainant's] alleged sexual conduct . . . until which
time as the jury can be retired and a hearing held to determine the admissibility of such evidence." 
The district court granted the motion.  During the course of the trial, the State asked the district court
to prohibit the appellant from presenting evidence that the complainant had also accused her father
of sexually abusing her.  Ultimately, the district court ruled that the appellant could not cross-examine the complainant regarding allegations that she had made about her father. 
 
DISCUSSION
	On appeal, the appellant asserts that the district court erred by refusing to allow him
to cross-examine the complainant regarding her allegations against her father.  Essentially, he argues
that the district court's ruling denied him his constitutional right to confront his accuser.  See U.S.
Const. amend. VI.  Moreover, the appellant insists that cross-examining the witness would have been
permissible under the rules of evidence.  Specifically, he asserts that the fact that the claimant also
made allegations against her father is relevant to her credibility and that he should have therefore
been allowed to cross-examine her regarding those allegations.  See Tex. R. Evid. 611 (allowing
party to cross-examine witness "on any matter relevant to any issue in the case,
including credibility").
	The rules of evidence generally prohibit the admission of evidence concerning the
victim's past sexual behavior in a sexual-assault case.  See id. 412.  However, sometimes the
Confrontation Clause of the Sixth Amendment requires the admission of evidence that the rules of
evidence would otherwise prohibit.  Lopez v. State, 18 S.W.3d 220, 225 (Tex. Crim. App. 2000); see
Tex. R. Evid. 412  (allowing admission of evidence of victim's previous sexual conduct if evidence
"is constitutionally required to be admitted").  The Sixth Amendment mandates that an accused be
given an opportunity to confront the witnesses against him in a criminal case.  U.S. Const. amend.
VI.  Primarily, the right to confrontation means the right to cross-examine the witnesses opposed to
the accused, Davis v. Alaska, 415 U.S. 308, 315 (1974), and this right extends to the States through
the Fourteenth Amendment, Caroll v. State, 916 S.W.2d 494, 497 n.4 (Tex. Crim. App. 1996). 
Cross-examination essentially serves three purposes:  (1) identifying "the witness with his
community so that independent testimony may be sought and offered concerning the witness'
reputation for veracity in that community," (2) allowing "the jury to assess the credibility of the
witness," and (3) allowing "facts to be brought out tending to discredit the witness by showing that
his testimony in chief was untrue or biased."  Id. at 497; see also Saglimbeni v. State,
100 S.W.3d 429, 435 (Tex. App.--San Antonio 2002, pet. ref'd) (explaining that right to
cross-examination includes right to impeach witness with relevant evidence illustrating bias, interest,
prejudice, inconsistent statements, traits of character affecting credibility, or impairment affecting
witness's credibility).  
	However, while an accused has the right to confront and cross-examine witnesses,
that right is not absolute.  See Saglimbeni, 100 S.W.3d at 435.  Although the Sixth Amendment
should be liberally construed to properly protect the accused's constitutional rights, trial courts have
"broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice,
confusion of the issues, endangering the witness, and the injection of cumulative or collateral
evidence."  Lopez, 18 S.W.3d at 222; see Saglimbeni, 100 S.W.3d at 435.  Appellate courts review
a trial court's limitation of cross-examination for an abuse of discretion, and they will not interfere
with the trial court's ruling if it is within the zone of reasonable disagreement.  Lempar v. State,
191 S.W.3d 230, 236 (Tex. App.--San Antonio 2005, pet. ref'd).
	For Confrontation-Clause purposes, in order for a prior accusation of sexual abuse
to be admitted to impeach the credibility of the complainant, "there must be a showing that [the]
evidence is probative."  Id. at 239.  In other words, "there must be evidence that the prior accusations
were similar to the accusations in the instant case, and there must be evidence that the prior
accusations were false."  Id.; see Hughes v. State, 850 S.W.2d 260, 262-63 (Tex. App.--Fort Worth
1993, pet. ref'd) (stating that when "there is no evidence that the complainant made false
accusations, any evidence concerning the accusations is inadmissible.").  Submitting proof that the
previous accusations were false is necessary to actually attack the credibility of the claimant and
"establish a motive for the complainant to lie" in the present case.  See Hughes, 850 S.W.2d at 263. 
Moreover, requiring this type of evidence before allowing cross-examination limits the risk of further
victimizing a complainant by urging that the complainant lies about sexual assault.  Lempar,
191 S.W.3d at 239.  Not requiring this type of proof before allowing defendants to question
complainants regarding previous accusations would unduly prejudice the State's case and confuse
the jury with information not relevant to the determination of whether the defendant was guilty of
the crime alleged.  See id.; see also Tex. R. Evid. 403 (allowing even relevant evidence to be
excluded in order to prevent, among other things, confusion of issues).  
	During his trial, the appellant presented no evidence that the complainant's
allegations against her father were false or that she had recanted her accusations.  Without some
evidence demonstrating that the allegations  might be false, testimony concerning the complainant's 
allegations against her father would have been irrelevant to the final determination of the appellant's
guilt.  In other words, evidence demonstrating that the complainant had made allegations against her
father, without more, would not have been relevant to a determination of whether the complainant
fabricated her allegations against the appellant and, correspondingly, whether the appellant was
guilty of the offense charged.  Accordingly, the appellant failed to demonstrate that cross-examining
the complainant regarding  her allegations against her father was constitutionally required, and the
district court's decision to limit the cross-examination of the claimant did not violate the appellant's
constitutional right to confront the witnesses against him.  See U.S. Const. amend. VI.  For these
same reasons, the appellant also failed to demonstrate that the evidence would have been admissible
under the rules of evidence.  See Tex. R. Evid. 401 (stating that evidence is relevant if it tends to
make existence of fact "more probable or less probable than it would be without the evidence"), 402
(explaining that evidence that "is not relevant is inadmissible").  In light of the appellant's failure
to produce any evidence indicating that the complainant's prior allegations against her father were
false, we cannot conclude that the district court abused its discretion by preventing the appellant
from cross-examining the complainant regarding those allegations.  See Lape v. State,
893 S.W.2d 949, 955-56 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd) (upholding exclusion
of evidence of previous accusations when no evidence was introduced to show that allegations were
false:  complainant never admitted allegations against other men were false, and no other witnesses
testified that allegations were false).  Moreover,  we note that the complainant's credibility had
already been impeached through the testimony of one of the State's witnesses indicating  that the
complainant had made false allegations against other individuals while in therapy. 
	For all the reasons previously given, we overrule the appellant's sole issue on appeal
and affirm the judgment of the district court.

 
					David Puryear, Justice
Before Justices Patterson, Puryear and Waldrop

Affirmed
Filed:   August 9, 2007
Do Not Publish
1.    The record only refers to the grandchild as "050603."  For purposes of this appeal, where
relevant, we will refer to the grandchild as the "complainant."  
