AFFIRM as modified and Opinion Filed March 28, 2013




                                            In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                     No. 05-11-01556-CR

                             JOHN KENT MATHIS, Appellant

                                               V.

                             THE STATE OF TEXAS, Appellee

                     On Appeal from the 382nd Judicial District Court
                                 Rockwall County, Texas
                            Trial Court Cause No. 2-11-217

                                         OPINION
                          Before Justices Moseley, Francis, and Lang
                                  Opinion By Justice Francis

       A jury convicted John Kent Mathis of sexually assaulting his girlfriend’s fourteen-year-

old daughter, recommended a probated sentence, and assessed a $10,000 fine. In five issues,

appellant complains about the legal sufficiency of the evidence, evidentiary rulings, and two

conditions of probation. We sustain appellant’s complaint regarding the requirement that he pay

for a Secure Continuous Remote Alcohol Monitor (SCRAM) as a condition of probation. We

modify the trial court’s judgment and affirm as modified.

       Appellant dated J.P.’s mother for more than ten years, and they lived together for most of

that time. By May 2011, they were still dating but were not living together. J.P., who was
fourteen years old, spent the night at appellant’s house on May 21; her brother Trey and

appellant’s two teen-age children were also at the house. While there, J.P. divulged that she had

been sexually assaulted by a fifteen-year-old boy a year earlier. Over J.P.’s objections, appellant

insisted the assault be reported to the police the following day.

       Later that night, while the other children were in their rooms sleeping or watching

television, J.P. went to appellant’s bedroom. Appellant told J.P. she “deserved” a drink, and the

two drank whiskey and smoked cigarettes. J.P. began to feel the effects of the alcohol and took a

shower before going to bed. She said she sat down in the shower and appellant came in, picked

her up, and carried her to one of the two beds in his bedroom. Appellant then got on top of her,

held her down by her arms and knees, and raped her. J.P. said appellant’s penis penetrated her

vagina. As he assaulted her, appellant said, “That’s my girl.” She was not sure how long the

assault lasted, how it ended, or whether appellant ejaculated.       She testified she could not

remember the entire assault because she was “passing out or falling asleep.” The next morning,

appellant asked her if they had sex, and J.P. told him that he raped her. Appellant responded that

it was “voluntary” and asked J.P. to “keep quiet about it.”

       Shortly after their conversation, appellant took J.P. and Trey home. On the way home,

J.P. told her brother they would not be seeing appellant for a while. Trey asked why, and

appellant responded that he had sex with J.P. J.P. said, “No, he raped me.” When they arrived

home, J.P. immediately told her mother what happened, and J.P. was taken to the hospital and

examined by Susan Bander, a sexual assault nurse examiner.

       Bander said her examination showed J.P. had a thin red abrasion just inside her vagina

“probably” indicative of sexual activity and “multiple bruising on her body” that “could be”

consistent with being pinned or held down. She noted no trauma to the labia majora, labia



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minora, hymen, cervix, perineum, or anus.       J.P. told Bander she was vaginally assaulted.

Nevertheless, in addition to vaginal swabs, Bander also collected anal swabs because “dripping

or gravity would pull semen down, or she could have not remembered, or he could have rubbed

against her.”   The swabs were tested at the DPS crime laboratory, where the presence of

spermatozoa was found on the anal swab. Further testing revealed the sperm fraction was

consistent with the DNA profile of appellant with a probability that another Caucasian male

could be the source at 1 in 124.1 quintillion. No sperm was found on the vaginal swabs.

       While J.P. was at the hospital, appellant went to the Rockwall County Sheriff’s Office to

turn himself in. In a videotaped interview, appellant told the officer that J.P. told him he had

raped her. Appellant said he had been drinking whiskey that night and did not know if J.P. drank

anything. Sometime after 11 p.m. or midnight, he went to sleep. He said he woke up during the

night and went to his bathroom, where he found J.P. sitting in the shower with the water running.

J.P. asked him to help her to bed, and appellant said he put a T-shirt on her and put her in bed.

Appellant said he had a “sex dream” that night but would not talk about it. The next morning, he

woke J.P. and after a brief conversation, he said to her, “I hope I didn’t get stupid last night.”

J.P. responded that he was “real stupid” and then told him “what [he] did.” He said he was

intoxicated that night and did not know what happened, but said J.P. had “no reason to lie.”

       In his fifth issue, appellant contends the evidence is legally insufficient to support his

conviction. When assessing whether the evidence is legally sufficient to support a conviction,

we review all of the evidence in the light most favorable to the verdict to determine whether any

rational trier of fact could find the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury, as sole judge of the witnesses’

credibility and the weight to be given their testimony, is free to accept or reject any and all



                                                3
evidence presented by either side. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App.

2000).

         A person commits sexual assault if the person intentionally or knowingly causes the

sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another

person, including the actor. See TEX. PENAL CODE ANN. § 22.011(a)(2)(C) (West 2011). The

State’s indictment in this case alleged appellant caused contact “with the anus or sexual organ”

of J.P. by appellant’s sexual organ. The testimony of a child victim alone is sufficient to support

a conviction for sexual assault. TEX. CODE CRIM. PRO. ANN. art. 38.07(a) (West Supp. 2012);

Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d);.

         Appellant argues the evidence is “inconsistent and self-contradictory” to the point of

being legally insufficient.   Specifically, he argues the scientific evidence contradicts J.P.’s

testimony of what happened because J.P. testified the contact and penetration was vaginal only,

and not anal, yet only the anal swabs tested positive for semen. He argues that semen should

have been found on the vaginal swabs or on J.P.’s panties, if she was vaginally assaulted.

Finally, he asserts only minimal trauma was found.

         J.P. testified appellant held her down by her arms and knees and sexually assaulted her.

The medical evidence corroborated her testimony. An examination showed a thin red abrasion

just inside J.P.’s vagina. Also, multiple bruises were found on her arms and legs consistent with

being pinned down. Appellant’s semen was found on J.P.’s anus. That the semen was found on

the anal swabs instead of vaginal swabs does not render the evidence legally insufficient. Bander

explained semen could drip or gravitate downward from the vagina to the anus, and the jury

apparently rejected appellant’s theory that the semen was transferred from his bed to J.P. when

he placed her there wet and naked.



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       In addition to J.P.’s testimony and the medical evidence, other evidence showed that

while J.P. was at the hospital, appellant went to the Rockwall County Sheriff’s Office and said

he wanted to turn himself in.         When asked what crime he had committed, he said his

stepdaughter told him they “had sex last night.” When questioned by the City of Heath police

officer, he indicated he had been intoxicated and did not remember the incident, although he said

J.P. “had no reason to lie.” Considering all of the evidence in this case, we conclude it is

sufficient for a rational jury to reasonably find that appellant’s penis contacted J.P.’s sexual

organ. We overrule the fifth issue.

       In his first issue, appellant contends the trial court erred in limiting his cross-examination

of J.P. regarding her alleged sexual assault by a teen-age acquaintance a year earlier, in violation

of his Sixth Amendment confrontation right. Specifically, he contends he was precluded from

asking J.P. about details of the allegations against the boy and, in particular, whether she was

telling the truth. He argues that if J.P. falsely accused the boy, the evidence would be relevant as

to whether or not she falsely accused appellant “of the same thing only hours later.”

       The State filed a pretrial motion in limine in which it sought to prevent appellant’s

counsel and defense witnesses from mentioning or referring to “[e]vidence of sexual promiscuity

or past sexual behavior of [J.P.], pursuant to Rule 412 of the Texas Rules of Evidence.” Before

any witness testified, the following discussion occurred:

               [TRIAL COURT]: What do you have?

               [PROSECUTOR]: Judge, briefly two things. I know we had
               discussed a couple of motions in limine that the State had made
               previously, one regarding the defendant’s - - excuse me, the
               victim’s sexual history, Your Honor. I’ve learned from my
               witnesses there may have been some discussion with Mr. Blessing
               [defense counsel] regarding calling - - I don’t know calling on the
               phone or calling to the stand - - [the father of the 15-year-old boy]
               that we’ve discussed previously in chambers regarding the

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previous - - the previous sexual encounter. I just want to be clear
that questions can be asked of her about whether or not that
incident happened, but that any extraneous, extrinsic evidence
regarding that is inadmissible.

[TRIAL COURT]: That’s right.

[DEFENSE COUNSEL]: No, we have the boy subpoenaed. And
because of his age, the only way we can subpoena is through his
father.

[PROSECUTOR]: But he shouldn’t be - -

[SECOND PROSECUTOR]: Clarify if I’m wrong, Judge, but was
your ruling that the outcry concerning previous sexual - -

[TRIAL COURT]: Yeah, because that’s all - - that’s all the
argument was for was to show why she didn’t want to have that
reported. The details of it or whether it happened or not - -

[PROSECUTOR]: Or any witnesses about it.

[TRIAL COURT] - - is collateral. We’re not going to go into
that. But I did say you can - - you don’t have to just generically
say that something was gonna be reported. You can say what it
was.

[SECOND PROSECUTOR]: But you can’t go into the facts of the
encounter itself by witnesses or anything else.

[DEFENSE COUNSEL]: I understand. I know.

[TRIAL COURT]: Or through her. I mean for that matter.

[SECOND PROSECUTOR]: Or through her.

[DEFENSE COUNSEL]: I understand.

[TRIAL COURT]: You can ask her what she said. What else?

[SECOND PROSECUTOR]: We have a subpoena for the boy.
That’s why I’m being guarded about it.

[DEFENSE COUNSEL]: I got the subpoena for the boy last week.

[PROSECUTOR]: I just want to be clear about that.

                                6
       It is clear from the above exchange there was an earlier discussion on this issue that is not

contained in our record. It is unclear from the above exchange whether the trial court did in fact

preclude appellant from asking J.P. if she had been previously sexually assaulted. At one point,

the trial court indicates that questions could be asked about “whether or not that incident

happened” but then also stated whether it happened was “collateral” and “[w]e’re not going to go

into that.” Regardless, to preserve error in the exclusion of evidence, the proponent is required

to make an offer of proof and obtain a ruling. Reyna v. State, 168 S.W.3d 173, 176 (Tex. Crim.

App. 2005). Additionally, a party must not only tell the judge that the evidence is admissible but

must also explain why it is admissible. Id. at 177.

       During the above exchange, appellant made no statements about what evidence he

wanted to adduce, the purpose of such evidence, or that he disagreed with the trial court’s ruling.

Even if we assume the above exchange was sufficient to apprise the trial court that appellant

wanted to delve into an alleged prior false accusation, appellant did not offer any legal basis for

the admission of such evidence. And, he specifically did not complain that the exclusion of such

evidence violated his Sixth Amendment rights. Because appellant did not argue that exclusion of

the evidence would violate his constitutional right to confrontation, he has failed to preserve this

complaint for review. See id. To the extent he suggests he was denied his constitutional right to

present a defense, he likewise has waived that complaint. We overrule the first issue.

       In his second issue, appellant contends the trial court abused its discretion by denying

admission of J.P.’s medical records from Timberlawn Mental Health System into evidence and

his sub rosa proffer of her oral testimony related to her hospitalization.

       After a five-day stay, J.P. was discharged from Timberlawn two weeks before the instant

offense occurred. Appellant offered J.P.’s Timberlawn medical records with a business records

                                                  7
affidavit. The State objected that the records were irrelevant, had not been on file for fourteen

days as required by Texas Rule of Evidence 902(10)(a), and had no sponsoring witness.

Appellant acknowledged the records had not been on file for fourteen days and did not contradict

the prosecutor’s statement of no sponsoring witness. The trial judge noted he had reviewed the

medical records and they reflected “a diagnosis of depression, and it’s described as a single

episode.”   He then sustained the State’s objection on both relevancy and business records

affidavit grounds.

       Appellant asked to make an offer of proof by questioning J.P., which the trial court

allowed. Appellant asked J.P. eleven questions related to when she was admitted to Timberlawn,

if she had been depressed and for how long, and if she attempted suicide by drinking acetone.

J.P. testified she was committed to Timberlawn in May 2010 for depression, but she did not

know how long she had been depressed or why. She also acknowledged attempting suicide. At

the conclusion of the offer of proof, appellant asked that either J.P.’s testimony, the medical

records, or both be admitted and asserted the evidence was “relevant to the issue of J.P.’s mental

state at or around the time of the alleged offense[.]” The trial court again denied admission of

the evidence.

       On appeal, appellant acknowledges the business records affidavit is subject to the

fourteen-day advance filing rule, but he asserts the custodian of records was “subpoenaed to trial

personally and could have proved up the records” under Texas Rule of Evidence 803(6). He

does not, however, direct us to any place in the record to support his assertion nor does the

record show he apprised the trial court that he had a sponsoring witness ready.          Because

appellant has not shown that the records were—or could be—properly authenticated, we

conclude the trial court did not abuse its discretion by excluding them.



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       Appellant also asserts the trial court erred by excluding the testimony contained in the

offer of proof. Texas Rule of Appellate Procedure 38.1(h) requires an appellant to include in his

brief “a clear and concise argument for the contentions made, with appropriate citations to

authorities and the record.” TEX. R. APP. P. 38.1(h). Here, appellant “submits the cases and

arguments under Issue 1, related to an accused’s constitutional right to cross-examination,

confrontation and right to present a defense to the criminal charges against him.” Appellant’s

argument in the previous issue went to an alleged prior false allegation of sexual assault. Within

this issue, he has made no attempt to apply relevant law to the facts of this case and, in particular,

the facts adduced in the offer of proof. We therefore conclude the issue is inadequately briefed.

       Even if we considered the issue properly briefed, we would conclude the trial court did

not abuse its discretion by excluding the evidence. Evidence of a mental illness or disturbance

that a witness has suffered in the recent past—before the event in question occurred—may be

admissible. Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1987). Its admissibility must be

decided on an ad hoc basis, and deference must be given to the trial court initially deciding the

issue. Id. An accused’s right to cross-examine a testifying State’s witness includes the right to

impeach the witness with relevant evidence that might reflect, among other things, an

impairment or disability affecting the witness’s credibility. Id. at 29. Cross-examination of a

testifying State’s witness to show the witness suffered a recent mental illness or disturbance is

proper, provided such mental illness or disturbance is such that it might tend to reflect on the

witness’s credibility. Id. at 30. However, the mere fact that the witness has in the recent past

suffered or received treatment for a mental illness or disturbance does not, for this reason alone,

cause this kind of evidence to become admissible impeachment evidence. Id.




                                                  9
           Here, the offer of proof showed J.P. had attempted suicide and was admitted to

Timberlawn for depression in May 2010, before this incident occurred. Appellant does not

explain how J.P.’s depression was relevant to impeach J.P.’s credibility as a witness, her mental

stability, or her memory of the events. To the extent he suggests he was denied the opportunity

to question J.P. about her medication and its effect, the record does not show appellant ever

attempted to ask J.P. those questions or that the trial court prohibited him from doing so. 1

Further, he never asked any of those questions when he made his offer of proof, so the trial court

was not given the opportunity to consider that issue at that time. Given the discretion accorded

the trial court, we cannot conclude its decision to exclude the evidence adduced in the offer of

proof was error. We overrule the second issue.

           In his third and fourth issues, appellant contends the trial court erred by ordering him, as

conditions of probation, to reimburse the county for the costs of his court-appointed attorney and

to pay the costs of a SCRAM device. 2 In both issues, appellant asserts he was presumptively

indigent and relies on Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010), as authority to

hold both conditions improper.

           In Mayer, the defendant was sentenced to thirty years in prison, and the trial court

ordered him to repay his appointed attorney’s fees. Mayer appealed to the Amarillo Court of

Appeals, arguing he was indigent and there was insufficient evidence under article 26.05 of the

code of criminal procedure to support the attorney-fee order. The Amarillo court agreed and

modified the judgment to delete the requirement of repaying court-appointed attorney’s fees.

Mayer v. State, 274 S.W.3d 898, 901–02 (Tex. App.—Amarillo 2008), aff’d, 309 S.W.3d 552

     1
       We note at the time of the offer of proof, evidence was before the jury that J.P. was taking Prozac, an anti-depressant, at the time of her
sexual assault examination.
     2
       The SCRAM device is placed on a defendant’s ankle and was described at the sentencing hearing as “technology [that] allows for . . . two
devices to be combined into one that would allow for electronic monitoring as well as the alcohol monitoring.” The device measures the
individual’s alcohol consumption through vapors emitted by the individual’s skin.


                                                                       10
(Tex. Crim. App. 2010). The State appealed. The court of criminal appeals first addressed

whether Mayer procedurally defaulted the issue by not objecting in the trial court. Mayer, 309

S.W.3d at 554–56. The court concluded that no trial objection is needed to raise a claim of

insufficient evidence and then addressed the merits of appellant’s claim. Id. at 556–57.

       Here, appellant has not been sentenced to prison; he has been placed on probation and is

complaining about one of the conditions regarding his probation.            Mayer did not address

attorney’s fees or other payments levied as a condition of probation. Id. at 556-57. We therefore

conclude its holding with respect to preservation of error is inapposite in cases involving an

order of attorney’s fees as a condition of probation.

       An award of probation is not a right, but a contractual privilege, and its conditions are

terms of the contract entered into between the trial court and the defendant. Speth v. State, 6

S.W.3d 530, 534 (Tex. Crim. App. 1999). Therefore, unobjected-to conditions are affirmatively

accepted as terms of the contract.      Id.   If a defendant does not object to a condition, he

“affirmatively waives any rights encroached upon by the terms of the contract.” Id. A trial

objection allows the trial court the opportunity to either risk abusing its discretion by imposing

the condition over objection or reconsider the desirability of the contract without the

objectionable condition.    Id. at 534–35.     Thus, assuming the probationer knew what the

conditions were in time to object at trial, “[a] defendant who benefits from the contractual

privilege of probation, the granting of which does not involve a systemic right or prohibition,

must complain at trial to conditions he finds objectionable.” Id. at 534.

       Here, the State argues appellant did not object to either condition of probation. We begin

with the attorney’s fees. At the sentencing hearing, the trial judge orally ordered appellant “to

reimburse all court costs in this case, including attorney’s fees for your court-appointed



                                                 11
attorney.” Appellant did not object at any time to the requirement he repay his court-appointed

attorney’s fees. Consequently, we conclude this issue is not preserved for our review. We

overrule the third issue.

       We reach a different conclusion with respect to the SCRAM device. At the punishment

hearing, the trial judge told appellant he was going to order him, as a condition of probation, to

successfully complete an Intermediate Sanctions Facility Alcohol Treatment Program (ISF). The

prosecutor then asked the trial court to require appellant to wear a SCRAM device once he is

released to the public following completion of the treatment program. The trial court agreed and

ordered appellant to wear a SCRAM device after his release for a period of twelve months, at the

end of which a review would be made to determine if he needed to continue wearing the device.

       Appellant’s trial counsel interjected to explain that appellant had been incarcerated for

about sixteen months before trial and would be incarcerated another six months due to the ISF

condition. Trial counsel said appellant was indigent, had “no money,” and would be in “even

worse shape” once he is released and asked that the county pay for the SCRAM device. The trial

judge said he understood that “we don’t want him to be immediately in violation because he

can’t afford to do those things.” The trial judge then said appellant needed to “work with

probation on those matters. They’re the ones that recommended the monitoring to him.” The

trial judge asked an unidentified man how the electronic monitoring is paid, and the person

responded, “The defendant pays for it.”

       The conditions of probation require appellant to wear a SCRAM device for electronic and

alcohol monitoring for twenty-four months (contrary to the trial court’s oral pronouncement of

twelve months) at which time the device may be removed and replaced with an “ignition

interlock device capable of photo start” if appellant has complied with SCRAM and the



                                               12
conditions of his probation. The condition further requires appellant to pay all costs associated

with the monitor.

       Given the discussion above, we conclude appellant clearly made the trial court aware he

was indigent and could not afford to pay for a SCRAM device, at least as of the time of the

sentencing hearing. Consequently, we conclude appellant has preserved this issue for review.

       We review the imposition of community supervision conditions under an abuse of

discretion standard. LeBlanc v. State, 908 S.W.2d 573, 574 (Tex. App.—Fort Worth 1995, no

pet.). Article 42.12, section 11(b) of the code of criminal procedure provides that a judge may

not order a defendant to make any payments as a term or condition of supervision, except for

“fines, court costs, restitution to the victim, and other conditions personally related to the

rehabilitation of the defendant or otherwise expressly authorized by law.” TEX. CODE CRIM.

PROC. ANN. art. 42.12, § 11(b) (West Supp. 2012). Further, the court is required to “consider the

ability of the defendant to make payments under this article.” Id.

       The undisputed evidence at the sentencing hearing showed appellant had been

incarcerated the previous sixteen months and would be incarcerated for at least six months while

completing the ISF program. This evidence established that, at least as of the time of the

sentencing hearing and upon his immediate release from ISF, appellant did not have the ability to

pay for the SCRAM device. Consequently, we conclude the trial court abused its discretion by

requiring appellant to pay for the SCRAM device. Appellant has not contested the trial court’s

requirement he wear a SCRAM device, only the requirement that he pay all costs associated with

the device. Because appellant has not contested the requirement he wear the device, this opinion

does not preclude the trial court from requiring him to wear the device if it does so in a way other

than requiring him to pay the costs for it. Further, nothing in this opinion precludes the trial



                                                13
court from ordering appellant to pay for the SCRAM device in the future if there is evidence of

appellant’s ability to pay. We sustain the fourth issue.

       We modify the trial court’s judgment to delete the condition that appellant pay for the

costs of the SCRAM device. We affirm the trial court’s judgment as modified. See TEX. R. APP.

P. 43.2(b).




                                                     /Molly Francis/
                                                     MOLLY FRANCIS
                                                     JUSTICE


Publish
Tex. R. App. P. 47
111556F.P05




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                                               S

                               Court of Appeals
                        Fifth District of Texas at Dallas
                                        JUDGMENT

JOHN KENT MATHIS, Appellant                        On Appeal from the 382nd Judicial District
                                                   Court, Rockwall County, Texas
No. 05-11-01556-CR         V.                      Trial Court Cause No. 2-11-217.
                                                   Opinion delivered by Justice Francis;
THE STATE OF TEXAS, Appellee                       Justices Moseley and Lang participating.


        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

              To delete from Condition 21 of the Order Imposing Conditions of
              Community Supervision the requirement that appellant John Kent
              Mathis pay all costs associated with the SCRAM monitor.


              As modified, we AFFIRM the trial court’s judgment.


Judgment entered March 28, 2013.




                                                   /Molly Francis/
                                                   MOLLY FRANCIS
                                                   JUSTICE




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