                                                                                  PD-1496-14
                                                                 COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                               Transmitted 6/19/2015 11:19:10 AM
  June 19, 2015                                                  Accepted 6/19/2015 12:54:32 PM
                                                                                  ABEL ACOSTA
                           Cause No. PD-1496-14                                           CLERK

                           In the Court of Criminal
                               Appeals of Texas


                             Joe Dale Johnson,
                                 Appellant

                                         v.

                             The State of Texas,
                                  Appellee

                  On Review from Cause No. 02-11-00253-CR
                       in the Second Court of Appeals
                              Fort Worth, Texas


                         State’s Brief on the Merits


                             Maureen Shelton
                   Wichita County Criminal District Attorney

        John Gillespie                                Carey Jensen
First Asst. Criminal District Attorney        Asst. Criminal District Attorney
    Wichita County, Texas                         Wichita County, Texas
   State Bar No. 02907800                        State Bar No. 24083252
John.Gillespie@co.wichita.tx.us               Carey.Jensen@co.wichita.tx.us

                            900 Seventh Street
                         Wichita Falls, Texas 76301
                          (940) 766-8113 phone
                            (940) 716-8530 fax

                        Attorneys for State of Texas

                           Oral Argument Waived
To the Court of Criminal Appeals:

      Pursuant to Rule 70.2 of the Rules of Appellate Procedure, the State

submits its reply to Appellant’s brief on the merits. The State asks this Court

to deny Appellant’s points and affirm the en banc judgment of the Second

Court of Appeals.




                                       ii
                      Identity of Parties and Counsel

Joe Dale Johnson, Appellant
TDCJ # 01723241
Estelle Unit
264 FM 3478
Huntsville, TX 77320-3320

Jeff Eaves
Counsel for Joe Dale Johnson on trial and appeal
900 8th Street, Suite 1400
Wichita Falls, Texas 76301

Todd Greenwood
Counsel for Joe Dale Johnson on appeal
813 8th St. Ste. 550-K
Wichita Falls, Texas 76301

John Gillespie
First Assistant Criminal District Attorney
Wichita County
Attorney for the State at trial and appeal
900 Seventh Street
Wichita Falls, Texas 76301

Carey Jensen
Assistant Criminal District Attorney
Wichita County
Attorney for the State on appeal
900 Seventh Street
Wichita Falls, Texas 76301




                                       iii
                                         Table of Contents

Identify of Parties and Counsel ...................................................................iii

Table of Contents ...................................................................................... iv

Index of Authorities ....................................................................................vii

Statement Regarding Oral Argument ......................................................... ix

Statement of the Case ............................................................................... ix

Issues Presented ....................................................................................... xi

Statement of Facts ...................................................................................... 1

Summary of the Argument .......................................................................... 4

Argument .................................................................................................. 10

        Reply Issue #1: Appellant failed to inform the trial judge of
        his open-door/false-impression theories for admission of
        the juvenile misconduct. Thus, Appellant has waived those
        grounds for admission .................................................................. 10

                A. Appellant never informed the trial judge of any theory
                   that the prosecutor opened-the-door to the juvenile
                   misconduct in jury selection ............................................... 11

                B. Appellant never informed the trial judge of any theory
                   that the prosecutor opened-the-door to the juvenile
                   misconduct in opening statement ....................................... 12

                C. Appellant never informed the trial judge of any theory
                   that the prosecutor presented a “false impression”
                   about the juvenile as a basis for admitting the juvenile
                   misconduct ......................................................................... 13




                                                     iv
Reply Issue #2: Contrary to Appellant’s claims, the record
reveals he was able to meaningfully develop and argue a
fabrication defense ........................................................................ 14

Reply Issue #3: Appellant has failed to show a logical
nexus between the juvenile offense and Appellant’s
fabrication defense. Without a logical nexus, the victim’s
juvenile offense was inadmissible ............................................... 16

       A. Appellant fails to establish a logical nexus between the
          juvenile offense and the fabrication defense ...................... 16

               1. Motive: Nothing in the record showed how
                  H.H.’s abuse of his sister was connected to
                  Appellant or supplied a motive or animus for H.H.
                  to lodge a false claim against Appellant .................... 17

               2. Means: The jury heard H.H. admit that he knew
                  making an accusation of sexual abuse could get
                  someone in trouble. The juvenile offense
                  provided no additional “means” to make a false
                  accusation................................................................. 18

               3. Knowledge: The jury heard about H.H.’s sexual
                  knowledge from pornography. A girl/boy sexual
                  relationship would provide little additional
                  information on how to a make a male-on-male
                  claim of sexual abuse................................................ 19

               4. Opportunity: The victim’s abuse of his sister was
                  not connected in any way to him being alone with
                  Appellant. .................................................................. 20

       B. The juvenile offense was properly excluded as
          irrelevant, as improper impeachment with specific
          instances of conduct, as the sexual history of the
          victim, and under the public policy of protecting the
          privacy of juvenile offenses ................................................ 22



                                           v
        Reply Issue #4: The record reveals that no false impression
        about the victim was left with the jury ......................................... 25

                 A. The prosecutor’s questions in voir dire were
                    appropriate, general questions that related to the
                    intelligent use of peremptory strikes ................................... 25

                 B. The prosecutor’s statements in opening about
                    Appellant and the victim were accurate and in line with
                    what the evidence showed at trial ...................................... 29

                          1. The prosecutor’s statements in opening
                             regarding H.H. were true and borne out by the
                             evidence at trial ......................................................... 30

                          2. The prosecutor’s statements about Appellant
                             were true and borne out by the evidence at trial........ 31

                 C. No contradiction existed between H.H. feeling more
                    strongly a wrong done to him than one he did to
                    someone else. Rather, this is simple human nature .......... 35

        Reply Issue #5: As the juvenile probation was discharged
        in July 2010, the State had no ongoing influence over the
        witness; thus, the concerns of the Irby dissent relating to
        influence from a probation relationship are not implicated
        here. Appellant has candidly conceded this point ..................... 36

Prayer ....................................................................................................... 38

Certificate of Compliance .......................................................................... 40

Certificate of Service ................................................................................. 40




                                                       vi
                                     Index of Authorities

Cases                                                                                           Page

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)....................... 20

Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002) ............................ 26

Davis v. Alaska, 415 U.S. 308 (1974) ....................................................... 22

Irby v. State, 327 S.W.3d 138 (Tex. Crim. App. 2010). ............. 22-23, 36-38

Johnson v. State (Johnson I), No. 02-11-00253-CR, 2013 WL 531079
     (Tex. App.—Fort Worth Feb. 14, 2013) (mem. op., not
     designated for publication) ....................................................... ix, x, 12

Johnson v. State (Johnson II), 449 S.W.3d 240 (Tex. App.—Fort
     Worth 2014, pet. granted) (mem. op., en banc) ................. ix, x, 12, 15

Lee v. State, 206 S.W. 3d 620 (Tex. Crim. App. 2006). ............................ 29

McDonald v. State, 186 S.W.3d 86 (Tex. App.—Houston [1st Dist.]
    2005, no pet.) .................................................................................. 26

Messenger v. State, 638 S.W.2d 883 (Tex. Crim. App. 1982) ................... 20

Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005) ..................... 11-14

U.S. v. Doe, 903 F.2d 16 (D.C. Cir. 1990) ................................................. 29

Wingo v. State, 189 S.W.3d 270 (Tex. Crim. App. 2006). ......................... 26

Statutes

Tex. Pen. Code 22.021(e) ......................................................................... 34

Rules

Tex. R. App. P. 33.1(a) ............................................................................. 14


                                                  vii
Tex. R. App. P. 33.1(a)(1)(A) .................................................................... 10

Tex. R. App. P. 68.4(f)(g) .......................................................................... 33

Tex. R. Evid. 402 ...................................................................................... 24

Tex. R. Evid. 412(b)(2)(C) & (E)................................................................ 24

Tex. R. Evid. 608(b) ............................................................................. 24-25

Tex. R. Evid. 609(d) ............................................................................. 24-25




                                                   viii
                     Statement Regarding Oral Argument

      Because this Court has already addressed when the Confrontation

Clause permits cross-examination about a juvenile offense and adjudication

in Irby v. State, the State believes oral argument is unnecessary and

therefore waives it.


                              Statement of the Case

      The initial memorandum opinion issued by the Second Court of

Appeals on February 14, 2013 reversing and remanding the Aggravated

Sexual Assault counts was fraught with factual inaccuracies and

misstatements that did not comport with the trial record.1

      This memorandum opinion incorrectly claimed that the State had left a

false impression with the jury by inquiring into the victim’s counseling and

asserted that the State left a false impression that the victim was innocent in

sexual matters.2

      Neither of these assertions was supported by the trial record. Rather,

the record revealed that it was defense counsel, not the prosecutor, who first



1      See State’s Motion for En Banc Reconsideration, Johnson v. State, No. 02-11-
00253-CR (Tex. App.—Fort Worth Feb. 22, 2013).
2      Johnson v. State, No. 02-11-00253-CR, 2013 WL 531079 (Tex. App.—Fort
Worth Feb. 14, 2013) (mem. op., not designated for publication) (“Johnson I”), opinion
withdrawn and superseded by Johnson v. State, 449 S.W.3d 240 (Tex. App.—Fort
Worth 2014, pet. granted) (mem. op., en banc) (“Johnson II”).
                                           ix
inquired into counseling.3 Additionally, Appellant inquired at trial into the

victim’s issues with pornography without objection by the State.4

      Based upon this erroneous open-door theory, the memorandum

opinion concluded that the State had opened the door to the victim’s juvenile

adjudication.5

      Because the memorandum opinion was founded on a false premise

not supported in the trial record, the State filed a motion for en banc

reconsideration.6

      On October 9, 2014, the court of appeals granted the State’s motion

and withdrew its initial memorandum opinion.7 Citing the trial record, the en

banc decision rejected the false open-door premise, explaining that the

defense – not the State – inquired into counseling and, therefore, the defense

could not open its own door.8 The en banc decision also found that the jury

was not left with a false-impression that H.H. was naïve in sexual matters.9




3     R.R. 7:63.
4     R.R. 7:64-65,149.
5     Johnson I at *6.
6     State’s Motion for En Banc Reconsideration, Johnson v. State, No. 02-11-00253-
CR (Tex. App.—Fort Worth Feb. 22, 2013).
7     Johnson II at 241.
8     Id. at 246.
9     Id. at 246.
                                         x
                          Issues Presented

I.     Appellant failed to inform the trial judge of his open-door/false-
       impression theories for admission of the juvenile misconduct.
       Thus, Appellant has waived those grounds for admission.

II.    Contrary to Appellant’s claims, the record reveals he was able
       to meaningfully develop and argue a fabrication defense.

III.   Appellant has failed to show a logical nexus between the
       juvenile offense and Appellant’s fabrication defense. Without a
       logical nexus, the victim’s juvenile offense was inadmissible.

IV.    The record reveals that no false impression about the victim
       was left with the jury.

V.     As the juvenile probation was discharged in July 2010, the
       State had no ongoing influence over the witness; thus, the
       concerns of the Irby dissent relating to influence from a
       probation relationship are not implicated here. Appellant has
       candidly conceded this point.




                                  xi
                             Statement of Facts

     Appellant, previously convicted of raping a boy in Kansas,10 began

volunteering with his church youth group in Burkburnett, Texas, serving as a

chaperon for youth trips to places such as Six Flags.11 Appellant asked H.H.,

who was 12-years-old, to mow his lawn.12 Then, Appellant and H.H. began

to spend more time together.13 Appellant would take H.H. to movies, out to

eat, and to hockey games.14 Appellant also gave H.H. small gifts like a $20

bill on Sunday mornings at church, a pack of gum, or Pokemon cards.15

Based on all these overtures, Appellant became to H.H. like “an uncle figure”

who was “more like family.”16 Appellant asked H.H. to “trust him more”

accelerating the intimacy and secrecy of the relationship.17

     All of this attention culminated with Appellant sexually propositioning

H.H.18 When they were alone together, Appellant reached over and started

touching H.H.’s stomach, and then asked H.H. to show him his penis.19 H.H.




10   See R.R. 10:23; SX-9.
11   R.R. 7:26.
12   R.R. 7:29.
13   R.R. 7:29.
14   R.R. 7:29-32,78.
15   R.R. 7:85.
16   R.R. 7:79.
17   R.R. 7:79.
18   R.R. 7:84.
19   R.R. 7:84.
                                      1
said no the first time, but eventually acquiesced.20 Appellant then showed

H.H. pornography.21

      Appellant asked H.H. if he could suck his penis.22 When H.H. said he

didn’t want to, Appellant suggested that he suck H.H.’s penis for 5 seconds

and “if you don’t like it, I’ll stop.”23 H.H. then unzipped his pants and Appellant

fellated him.24 Appellant then asked H.H. to suck on his penis, but H.H. said

no.25 Appellant again suggested that H.H. try it for 5-seconds, and H.H.

acquiesced.26 Then, they went and mowed the yard together.27 H.H.’s father

grew uneasy about Appellant’s relationship with his son and the amount of

time they wanted to spend together and put an end to it.28

      Eventually, H.H. told Jimmy, the teen group leader at church, about

these sexual acts with Appellant.29 Jimmy then went to speak to H.H.’s

father, and as a result, H.H.’s father reported the sexual abuse to the

Burkburnett Police Department.30



20     R.R. 7:85.
21     R.R. 7:86.
22     R.R. 7:86.
23     R.R. 7:88.
24     R.R. 7:89.
25     R.R. 7:90.
26     R.R. 7:90.
27     R.R. 7:91.
28     R.R. 7:29-30.
29     R.R. 7:109,114-15.
30     R.R. 7:33-34. Jimmy, the outcry witness was stationed in Italy with the Army at
the time of trial and had been in Italy for about three years. (R.R. 7:35.).
                                           2
      H.H.’s outcry to Jimmy about Appellant’s sexual abuse occurred in

November 2007.31 In May 2008, six months later, H.H. was charged with

sexual abuse of his sister that had been occurring for several years.32 In July

2008, H.H. was adjudicated for the juvenile offense and ordered into court-

ordered counseling as part of the probation.33 H.H. discharged his juvenile

probation in 2010, so at the time of the trial H.H. was no longer on juvenile

probation.34

      At trial, Appellant advanced a fabrication theory—that H.H. had

accused him of sexual abuse because H.H. was angry that Appellant had

donated a Nintendo DS to the church that he had promised to give to H.H.35

To rebut the defensive theory of fabrication, the State called a previous victim

of Appellant.36 Now a grown man, that previous victim testified that Appellant

had used a similar method of attention and promises to sexually proposition

and rape him when he was 13.37 Specifically, Appellant groomed that boy

by taking him swimming.38 Then, in exchange for the promise of a dirt bike,


31    R.R. 8:16.
32    See Defense Exhibit 1, the May 12, 2008 Original Petition, and the July 18, 2008
Order of Probation; R.R. 7:160.
33    See Defense Exhibit 1, the May 12, 2008 Original Petition, and the July 18, 2008
Order of Probation.
34    R.R. 4:5.
35    R.R. 7:20,145,147.
36    R.R. 9:15.
37    R.R. 9:19-26.
38    R.R. 9:19-21.
                                          3
Appellant had the boy fellate him.39 During punishment, the State proved up

Appellant’s Kansas felony convictions for two counts of Aggravated Sodomy

and one count of Indecent Liberties with a Child.40 The jury found the sexual

enhancement true, and Appellant was sentenced to mandatory Life

sentences.41

                         Summary of the Argument

      First, Appellant failed to inform the trial judge of his open-door/false

impression theories for admission of the juvenile conduct. To preserve error

when evidence is excluded, a party must in a timely manner inform the trial

judge of each basis for admission. This offers the trial judge an opportunity

to consider that reason for admission. If a party fails to notify the trial court

of a basis for admission, then he waives his ability to complain on those

grounds about the excluded evidence on appeal.

      At the admissibility hearing during trial concerning the juvenile offense

and adjudication, Appellant never raised any open-door/false impression

theories as a basis for admission.          Appellant never mentioned the

prosecutor’s voir dire or opening statement as having opened any door. By

not articulating these open-door/false impression theories of admissibility to


39    R.R. 9:24.
40    See SX-6,7,8; R.R. 10:18-23.
41    C.R. 153, 155, 157; 169-177.
                                       4
the trial judge, Appellant is barred from raising them for the first time on

appeal.

      Second, contrary to Appellant’s claims, the record reveals he was able

to meaningfully develop and argue a fabrication defense. Starting in opening

statement, Appellant told the jury H.H. was not your regular, normal 13-year-

old boy, that he was calculating and driven by anger concerning Appellant

giving a Nintendo DS to the church, and that this motivated H.H. to make up

this story. During cross-examination of H.H., Appellant confronted H.H. over

his anger at Appellant over the Nintendo, and also established that H.H. was

aware that he could retaliate against Appellant by making up a false claim of

abuse. In closing, Appellant highlighted this fabrication theory. So, the

record contradicts Appellant’s claims and reveals he did develop and argue

a fabrication/retaliation defense.

      Third, Appellant has failed to show any logical nexus between the

juvenile offense and Appellant’s fabrication defense.       While Appellant

contended that the juvenile offense somehow provided H.H. with motive,

means, knowledge, and opportunity to make a false claim, the record

demonstrates the juvenile offense had no evidentiary bearing upon motive,

means, knowledge or opportunity.




                                     5
      For motive, nothing in the record showed how H.H.’s abuse of his sister

was connected to Appellant or supplied a motive or animus for H.H. to lodge

a false claim against Appellant. There was no evidence that Appellant had

discovered H.H.’s abuse of his sister or that Appellant had threated to expose

H.H.’s abuse. In fact, the record showed no connection or overlap between

H.H.’s juvenile misconduct and his relationship with Appellant.

      For means, the jury heard that H.H. knew that making an accusation

of sexual abuse could get someone in trouble. So, the jury understood that

H.H. had the means to make a false claim. The record fails to show how

H.H.’s abuse of his sister provided any additional elucidation of H.H.’s means

for making a false claim against Appellant, since H.H. freely admitted on the

stand in front of the jury that he understood the power of a false claim of

sexual abuse.

      For knowledge, the jury heard about H.H.’s access to and history with

internet pornography. So, the jury was aware that H.H. had an independent

source for sexual information apart from Appellant’s sexual abuse of him. A

girl/boy incestuous relationship would provide little additional information on

how to make a realistic male-on-male false claim of sexual abuse, as the

incestuous girl/boy relationship bears little in common with male-on-male

adult/juvenile   sexual   acts   and   interaction.    Additionally,   internet


                                       6
pornography—which the jury heard H.H. had a history of accessing—would

provide a far more fertile source of information for a juvenile trying to figure

out how to make a realistic male-on-male claim of man/boy sexual abuse.

Thus, H.H.’s juvenile misconduct offered little evidentiary value on the issue

of knowledge to make a male-on-male, man/boy claim.

      For opportunity, H.H.’s abuse of his sister was not connected, in any

way, to him being alone with Appellant. Opportunity simply means that the

alleged doer of an act was present at the time and place of the act. The time

Appellant and H.H. spent alone together was what provided H.H. with the

opportunity to make a false claim about what happened during that time

together. If Appellant and H.H. had never spent any time alone together,

then H.H. would not have had the opportunity to lodge a false claim of sexual

abuse. Nothing in the record revealed that H.H.’s abuse of his sister had

anything to do with the time he spent alone with Appellant. The jury heard

from multiple witnesses that H.H. and Appellant had spent time alone

together. Thus, the jury was aware that H.H. had the opportunity to make a

false claim as to what happened when he was alone with Appellant. H.H.’s

juvenile misconduct had no linkage to the issue of opportunity to make a

false claim.




                                       7
      As Appellant could not demonstrate a logical nexus between H.H.’s

juvenile misconduct and Appellant’s sexual abuse of H.H., the trial court

properly excluded the juvenile offense as irrelevant, as improper

impeachment with specific instances of conduct, as the sexual history of the

victim, and under the public policy of protecting the privacy of juvenile

offenders. Rather, Appellant essentially wanted to argue “H.H. is a juvenile

pervert so you shouldn’t believe him.” This is the epitome of an improper

general impeachment attack.

      Fourth, the record reveals that no false impression about the victim

was left with the jury. As to voir dire, the prosecutor’s questions were general

inquiries into the broad topic of child sexual abuse. These questions were

certainly appropriate to aid in the intelligent use of peremptory strikes.

Appellant never objected to any of these questions.          And, none of the

prosecutor’s questions were fact-specific to this case.

      As to the prosecutor’s statements in opening, the record revealed that

these statements were accurate and borne out by what the evidence showed

at trial. Relating to H.H., the prosecutor asked the jury to look at this through

the lens of 12-year-old boy. The testimony at trial revealed that H.H. was 12

at the time of the offense, even though he was 17 at the time of trial.

Additionally, “younger than 14” was an element of the offense and did not


                                       8
create any false impression about H.H. when he referenced his age at the

time of the offense, as that was an element of the offense.

      Relating to Appellant, the prosecutor’s statements were also accurate

and borne out by the evidence. In opening, the prosecutor said the evidence

would show Appellant was cunning, opportunistic, and deceitful. At trial, the

testimony revealed that Appellant volunteered in his church youth group,

showered H.H. with attention and gifts, and maneuvered to create a

relationship of trust and time alone with H.H. all with the goal of sexually

abusing H.H.      So, the evidence revealed Appellant to be cunning,

opportunistic, and deceitful in his modus operandi.

      Appellant also complains that the prosecutor asked the jury, in

opening, to consider whether the relationship between Appellant and H.H.

was a normal mentor/mentee relationship or whether it was a deviant,

perverted relationship. Texas law defines a sexual relationship between a

boy and a man as a deviant, perverted relationship in that it is a first degree

felony that carries up to Life in prison. Thus, the prosecutor did not create a

false impression about Appellant in opening by asking the jury to consider

the nature of the relationship between H.H. and Appellant.

      Fifth, as the juvenile probation was discharged in July 2010, the State

had no ongoing influence over H.H. at the time of trial in 2011. So, the


                                      9
concerns of the Irby dissent related to the ongoing influence of a probation

relationship are not implicated here. Appellant has candidly conceded this

point.

                                   Argument

     I.     Appellant failed to inform the trial judge of his open-door/false-
            impression theories for admission of the juvenile misconduct.
            Thus, Appellant has waived those grounds for admission.

          While Appellant’s brief advances multiple open-door/false-impression

theories for the admissibility of H.H.’s juvenile misconduct,42 Appellant is

barred from raising these theories as he failed to notify the trial judge of these

reasons for admission.43       Further, before the Second Court, Appellant

actively eschewed any open-door theory: “This appeal is not about who

opened a door…”44 Now, Appellant has reversed course, claiming that the

prosecutor “independently ‘opened any doors’ that could have possibly been

opened.”45

          To preserve a complaint that evidence was improperly excluded, a

party must state “the grounds for the ruling that the complaining party sought

with sufficient specificity to make the trial court aware of the complaint.”46


42    See Petitioner’s Discretionary Review Brief at 21-23.
43    R.R. 7:163-66.
44    See Appellant’s Response to State’s Motion for En Banc Reconsideration,
Johnson v. State, No. 02-11-00253-CR (Tex. App.—Fort Worth May 12, 2014), at 22.
45    See Appellant’s Brief at 23.
46    Tex. R. App. P. 33.1(a)(1)(A).
                                        10
When a party seeking admission of evidence fails to clearly articulate the

grounds for admission, the trial judge is not put on notice and is not able to

consider and rule based upon that rationale.47 Requesting admission of

evidence for one legal basis does not preserve for review a different legal

basis not mentioned.48 Thus, the unmentioned grounds for admission are

not preserved for review, and a party cannot raise them for the first time on

appeal.49

     A. Appellant never informed the trial judge of any theory that the
        prosecutor opened-the-door to the juvenile misconduct in jury
        selection.

       Although Appellant now attempts to argue that the prosecutor

somehow opened the door to the juvenile misconduct based upon questions

in jury selection,50 the record reveals Appellant never informed the trial judge

of this theory of admission for the juvenile misconduct.51 Appellant never

once mentioned or referenced any of the prosecutor’s questions in jury

selection at the hearing on admissibility of the juvenile misconduct.52 As




47     See Reyna v. State, 168 S.W.3d 173, 180 (Tex. Crim. App. 2005).
48     See id.
49     See id.
50     See Petitioner’s Discretionary Review Brief at 22.
51     R.R. 7:163-67.
52     R.R. 7:163-67.
                                         11
such, this theory of admission was not presented to the trial judge, and

Appellant cannot raise it for the first time on appeal.53

     B. Appellant never informed the trial judge of any theory that the
        prosecutor opened-the-door to the juvenile misconduct in
        opening statement.

       Even though Appellant now claims that the prosecutor’s opening

statement opened-the-door to the juvenile misconduct, the record also

reveals that Appellant never informed the trial judge of this theory at the

hearing on admissibility of the juvenile misconduct.54 In fact, Appellant never

once referenced the prosecutor’s opening statement at the admissibility




53     See Reyna, 168 S.W.3d at 179-80. Also, Appellant’s brief to the Second Court
contained no reference or argument that these general voir dire questions opened the
door. See Appellant’s Brief to the Second Court. And, the memorandum opinion
authored by Justice Dauphinot contained no reference to these general voir dire
questions opening the door to the juvenile offenses. See Johnson I. Rather, the
memorandum opinion argued that the State left a false impression during the testimony
as to why the juvenile was in counseling. Id.
       The State filed a motion for en banc reconsideration, detailing how the
memorandum opinion failed to note that the defense, not the State, first asked about the
juvenile’s counseling, that the defense could not open its own door, and that the
memorandum opinion conflated the family counseling that the juvenile was in before his
outcry with the court-ordered counseling he was later ordered to attend. See State’s
Motion for En Banc Reconsideration, Johnson v. State, No. 02-11-00253-CR (Tex.
App.—Fort Worth Feb. 22, 2013).
       In response to the State correcting the factual misstatements of the
memorandum opinion and prevailing on its motion for en banc reconsideration, Justice
Dauhpinot’s dissent then advanced the idea, for the first time, that these general voir
dire questions opened the door to the juvenile offense. See Johnson II, 449 S.W.3d at
251. Appellant has now adopted Justice Dauphinot’s theory. See Petitioner’s
Discretionary Review Brief at 22.
54     R.R. 7:163-67.
                                          12
hearing.55 As such, this theory of admission was not presented to the trial

judge, and Appellant cannot raise it for the first time on appeal.56

     C. Appellant never informed the trial judge of any theory that the
        prosecutor presented a “false impression” about the juvenile as
        a basis for admitting the juvenile misconduct.

       In addition to his theories relating to voir dire and opening, Appellant

now also advances a general theory that the prosecutor opened-the-door by

somehow presenting a “false impression” through H.H.’s testimony.57 The

record also reveals that Appellant never presented this “false impression”

theory to the trial judge.58 At the admissibility hearing, Appellant never

informed the judge that he believed the prosecution had left a false

impression to the jury through H.H.’s testimony, or even used the phrase

“false impression.”59 As such, this theory of admission was not presented to

the trial judge, and Appellant cannot raise it for the first time on appeal.60

       At the admissibility hearing, Appellant notified the trial judge that he

believed the juvenile misconduct was admissible to show the emotional and

mental state of H.H. at the time of the outcry, to show the credibility of the

witness, to show motive to gain attention, and under 404(b) to show


55     R.R. 7:163-67.
56     See Reyna, 168 S.W.3d at 179-80.
57     See Petitioner’s Discretionary Review Brief at 21-22.
58     R.R. 7:163-67.
59     R.R. 7:163-67.
60     See Reyna, 168 S.W.3d at 179-80.
                                           13
knowledge.61 These were the only reasons for admission that Appellant

asked the trial judge to consider, and no other grounds were apparent from

the context of the hearing.62 Thus, Appellant has failed to preserve these

various open-door theories.63

     II.      Contrary to Appellant’s claims, the record reveals he was able
              to meaningfully develop and argue a fabrication defense.

           In his brief Appellant asserts that his “sole defense of fabrication at trial

depended entirely upon the Confrontation which was denied” and that the

trial court “eviscerated [Appellant’s] core defense of fabrication.”64 The trial

record, however, contradicts Appellant’s claims and demonstrates that he

was, in fact, able to develop and argue a fabrication defense.

           Starting in opening statement, the defense painted the victim as “not

your regular, normal 13, almost 14-year-old boy.”65 Rather, the defense

suggested the victim was so calculating and driven by anger about a

Nintendo DS “that he wrote a note and then, seven months later, he makes

up this story.”66




61         R.R. 7:163-67.
62         R.R. 7:163-67.
63         See Reyna, 168 at 179-80; T.R.A.P. 33.1(a).
64         Petitioner’s Discretionary Review Brief at 3, 28.
65         R.R. 7:20.
66         R.R. 7:20.
                                                14
     Then, upon cross-examination of the victim, defense counsel

confronted him with his anger over not receiving the Nintendo DS.67 The

defense attorney also established that the victim was aware at that time that

if he made up an allegation of sexual abuse, he could get somebody in

trouble.68 During his questions on cross, Appellant also connected the timing

of the victim’s anger over the Nintendo DS to his outcry of abuse.69

     In closing argument, Appellant highlighted the fabrication theory: “Joe

gives this Nintendo to the church and H.H. gets mad. So here we have this

kid who is all emotionally troubled, emotionally in counseling and he doesn’t

get what he wants and he reacts and he’s irritated.”70 Thus, the record

established that Appellant did develop and argue a fabrication defense:

             “The record shows that the jury had a glut of
           evidence by which it could be inferred that H.H.
           fabricated his accusation: H.H. knew such an
           accusation would get someone in trouble, he was
           mad at Johnson about the Nintendo DS, he had been
           caught shoplifting, he had a bad relationship with his
           parents, he was in counseling for his problems, and
           he had a pornography habit. Indeed defense counsel
           raised all these grounds in his closing argument to
           the jury and urged that they indicated H.H. was not
           credible; thus, he was not prevented from presenting
           this defensive theory.”71

67   R.R. 7:146.
68   R.R. 7:146-47.
69   R.R. 7:147.
70   R.R. 7:95.
71   See Johnson II, 449 S.W.3d at 247. (emphasis added).
                                       15
     III.      Appellant has failed to show a logical nexus between the
               juvenile offense and Appellant’s fabrication defense. Without a
               logical nexus, the victim’s juvenile offense was inadmissible.

     A. Appellant fails to establish a logical nexus between the juvenile
        offense and the fabrication defense.

            Appellant claims72 that the victim’s abuse of his sister “potentially gave

the [victim] motive, means, knowledge, and opportunity to fabricate his

allegation against [Appellant].”73 While at face-value this claim sounds

serious, dissecting its individual parts reveals that for each point the jury



72      Before this Court, Appellant now asserts that “the longstanding abuse and the
motive, means, opportunity and knowledge it demonstrates is the issue, not the
counseling the complainant received for it…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.” See
Petitioner’s Discretionary Review Brief at 20. Yet, in his original brief before the Second
Court, Appellant stated: “The State left the false impression in the minds of the jury that
the primary reason the alleged victim was in counseling was because of his strained
relationship with his parents.” See Appellant’s [Original] Brief, Johnson v. State, No. 02-
11-00253-CR (Tex. App.—Fort Worth Mar. 20, 2012) at 15.
        Based upon Appellant’s emphasis on the “false impression” from the State
inquiring into counseling, Justice Dauphinot drafted a memorandum opinion reversing
the conviction. See Memorandum Opinion at 3. Justice Dauphinot based her opinion,
in part, on the State having “opened the door” to “evidence that could have accurately
conveyed why the complainant was in counseling…” See id. at 13.
        As it was Appellant and not the State who initially brought up counseling in front
of the jury, the State filed a motion for en banc reconsideration pointing out that
Appellant could not open his own door. See State’s Motion for En Banc
Reconsideration, Johnson v. State, No. 02-11-00253-CR (Tex. App.—Fort Worth Feb.
22, 2013). While Appellant now complains about the emphasis on counseling (which he
first brought up before the jury), it was Appellant’s initial brief that suggested the
incorrect open-door counseling theory to Justice Duaphinot. See Appellant’s [Original]
Brief, Johnson v. State, No. 02-11-00253-CR (Tex. App.—Fort Worth Mar. 20, 2012) at
15.
73      See Petitioner’s Discretionary Review Brief at 1.
                                            16
either (a) already had the information before it and the juvenile offense would

have added nothing new; or (b) the juvenile offense had no logical

connection to the point advanced.

     1) Motive: Nothing in the record showed how H.H.’s abuse of his
        sister was connected to Appellant or supplied a motive or animus
        for H.H. to lodge a false claim against Appellant.

       Appellant cannot demonstrate how the victim’s abuse of his sister

provided him with any animus against Appellant which would supply a motive

to fabricate a claim against Appellant. There was nothing in the record to

suggest that Appellant had discovered or threatened to report H.H for the

abuse of his sister.74 The State can certainly imagine a hypothetical situation

where an adult—who discovered and was going to report a juvenile

molesting his sister—could thereby supply a motive for a juvenile to make a

false claim against the adult either out of a motive of retaliation or to discredit

the adult’s report. But, nothing in the record suggests that situation in this

case or any linkage between the victim’s abuse of his sister and Appellant’s

abuse of the victim.75 The record does not show that Appellant knew of

H.H.’s abuse of his sister, much less that Appellant had threatened to report




74     R.R. 7:21-167; 8:5-9.
75     R.R. 7:21-167; 8:5-9.
                                        17
that abuse.76 The record is devoid of any connection between the time

Appellant was spending with H.H. and H.H.’s abuse of his sister.77

       The only possible motives for the fabrication defense were the anger

over the Nintendo DS and the desire to get attention from his parents, and

these motives were inquired into and developed in front of the jury.78

     2) Means: The jury heard H.H. admit that he knew making an
        accusation of sexual abuse could get someone in trouble. The
        juvenile offense provided no additional “means” to make a false
        accusation.

       When asked by the defense attorney if at the time he was angry about

the Nintendo he knew that he “could make an accusation of sexual abuse

and get someone in trouble,” Appellant agreed that he knew that.79 So, the

jury learned that H.H. knew the seriousness of allegations of sexual abuse

and the power of a false accusation and had the means to make a false

accusation if he desired. Since the jury understood that H.H. knew that a

false allegation could get someone in trouble, H.H.’s abuse of his sister

would have provided no additional elucidation of H.H.’s means to make a

false claim against Appellant.




76     R.R. 7:21-167; 8:5-9.
77     R.R. 7:21-167; 8:5-9.
78     R.R. 7:21-167; 8:5-9; 9:90-97.
79     R.R. 7:146-47.
                                        18
       The State can imagine a hypothetical situation where a younger child

might appear to be naïve about the power of a claim of sexual abuse;

however, here H.H. admitted in front of the jury that he understood such a

false claim could be used to get someone in trouble.80 Thus, H.H.’s abuse of

his sister would have added nothing new on the issue of H.H.’s means to

make a false claim.

     3) Knowledge: The jury heard about H.H.’s sexual knowledge from
        pornography. A girl/boy sexual relationship would provide little
        additional information on how to a make a male-on-male claim of
        sexual abuse.

       Appellant’s knowledge argument is also unfounded. First, the jury

heard about Appellant’s exposure to internet pornography.81 So, the jury also

understood that H.H. had a source of sexual knowledge (apart from

Appellant’s sexual abuse of him) which he could draw upon if he were

making a false accusation. The defense was free to argue that pornography

could have provided H.H. with the knowledge necessary to make a false

claim. Thus, Appellant’s claim that the jury somehow did not know that H.H.

had access to an alternative source of sexual knowledge and may have

believed he was sexually naïve was false.




80     R.R. 7:146-47.
81     R.R. 7:45,66-67,142.
                                     19
       Additionally, H.H.’s sexual misconduct with his sister would have

provided no further enlightenment to the jury about H.H.’s sexual knowledge

to make a false claim because of the disparity between the two acts. An

incestuous boy/girl relationship bears little in common with male-on-male

adult/juvenile sexual acts and interaction.82 Both the internet in general and

internet pornography in specific—which the jury had heard H.H. accessed—

provided a far more fertile source for allegations of male-on-male

adult/juvenile sexual abuse than H.H.’s incestuous relationship with his

sister.83

     4) Opportunity: The victim’s abuse of his sister was not connected
        in any way to him being alone with Appellant.

       Appellant also fails to explain how H.H.’s abuse of his sister had any

connection to him being alone with Appellant and thus having an opportunity

to make false claims of what happened when they were alone.84

“Opportunity” is defined as “the fact that the alleged doer of an act was


82      See, e.g., Messenger v. State, 638 S.W.2d 883, 886-87 (Tex. Crim. App. 1982)
(rejecting admission of extraneous offense and noting the important dissimilarities
between an adult sexual assault and the sexual assault of a child) overruled on other
grounds by Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).
83      Perhaps it was a defense trial strategy to not further argue that with the use of
Google and a few key-strokes Appellant could find access to graphic sexual
descriptions of male-on-male acts for a false allegation. (R.R. 9:90-99). Regardless,
with the widespread understanding of all the sexually explicit material on the internet,
this was a reasonable inference from the evidence, it was available to the jury, and the
court did not prevent Appellant from making this argument. (R.R. 7:149).
84      See Petitioner’s Discretionary Review Brief at 20.
                                            20
present at the time and place of the act.”85 From a potential fabrication

defense standpoint, Appellant and H.H. being alone and spending time

together is what would afford H.H. the “opportunity” to make a false claim of

sexual abuse, ergo if H.H. and Appellant had not spent time with each other

or been alone together, H.H. would not be able to claim Appellant sexually

abused him because of lack of opportunity. The jury was certainly aware

that H.H. and Appellant had spent significant time alone together, as both

H.H. and his father described the extensive time H.H. spent alone with

Appellant.86 From a legal standpoint, the time they spent alone together

provided both Appellant the opportunity to molest H.H. and H.H. the

opportunity to falsely claim he had been molested. Thus, the jury knew H.H.

had the opportunity to make a false claim.87

     Conversely, nothing in the record reveals how H.H.’s abuse of his

sister had anything to do with him being alone with Appellant and having the

opportunity to falsely accuse Appellant of what happened when they were

alone.88 Therefore, H.H.’s abuse of his sister was irrelevant to the issue of

opportunity to make a false claim against Appellant.




85   BLACK’S LAW DICTIONARY (10th ed. 2014).
86   R.R. 7:28-32; 75-84.
87   R.R. 7:28-32; 75-84.
88   R.R. 7:160-163.
                                       21
     B. The juvenile offense was properly excluded as irrelevant, as
        improper impeachment with specific instances of conduct, as the
        sexual history of the victim, and under the public policy of
        protecting the privacy of juvenile offenses.

       In a case where the juvenile is the victim, the federal Constitution does

not confer “a right in every case to impeach the general credibility of a

witness through cross-examination about his past delinquency adjudications

or criminal convictions.”89 Rather, the Confrontation Clause overrules a

state’s policy interest in protecting the confidentiality of a juvenile’s record

(or offenses) only when said record is necessary to show a “particular bias.”90

The Confrontation Clause does not require “that courts permit the use of prior

juvenile acts of misconduct or adjudications for general impeachment of

credibility.”91

       While Appellant attempts to draw a distinction between the

adjudication and H.H.’s ongoing abuse of his sister,92 for admissibility to be


89     Davis v. Alaska, 415 U.S. 308, 321 (1974) (Stewart, J., concurring).
90     Irby v. State, 327 S.W.3d 138, 146-47 (Tex. Crim. App. 2010).
91     Id. at 47.
92     See Appellant’s Brief at 14-15. Appellant incorrectly implies the trial judge
learned additional information at the admissibility hearing (during the trial) that
undermined his rationale at the pre-trial hearing. See Appellant’s Brief at 15-16.
Specifically, Appellant claims “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 trial court did not and gave no explanation despite the fact that the
rationale for its prior ruling manifestly no longer existed.” Id. at 18.
       Carefully inspecting what the trial judge said at the pre-trial hearing rebuts
Appellant’s claim: “[H.H.’s] outcry was made well before the allegation of charges
against the juvenile in a totally unrelated matter, I am not going to allow the Defense to
get into those matters and I think that they are not relevant to the case at hand.” (R.R.
                                             22
required under the Confrontation Clause, they are the same: if the juvenile

offense relates to a particular bias, it is admissible, but if it relates to general

impeachment of credibility, the Confrontation Clause does not require

admission.93

       Since Appellant is not arguing “any ongoing State influence over”

H.H.,94 then the question is whether H.H.’s juvenile sexual abuse of his sister

relates to a particular bias, or was just offered for general impeachment of

credibility.95

       As detailed above, Appellant cannot demonstrate that H.H.’s abuse of

his sister implicates any particular bias to show motive, means, knowledge,

or opportunity to allegedly make a false accusation.96 So, Appellant has failed

to show that the juvenile offense relates to a particular bias.




4:7). The record demonstrates the trial judge was correct: the juvenile’s outcry in this
case happened in November 2007, the juvenile charges were filed in May 2008, and the
adjudication happened in July 2008. See Defense Exhibit 1, the May 12, 2008 Original
Petition, and the July 18, 2008 Order of Probation; (R.R. 8:16). Nothing at the
admissibility hearing during trial showed any connection between the juvenile
misconduct and Appellant’s sexual abuse of H.H. (R.R. 7:158-166). Thus, the trial
judge was correct to exclude the juvenile misconduct. (R.R. 7:165-66).
93     Irby at 47 (drawing no distinction between “prior juvenile acts of misconduct or
adjudications).
94     See Appellant’s Brief at 14 (stating issue is about the abuse and not the
adjudication); Appellant’s Response to State’s Motion for En Banc Reconsideration at
18 (stating “H.H.’s motive to lie was not predicated upon any ongoing State influence
over him.”).
95     See Irby v. State, 327 S.W.3d 138, 147 (Tex. Crim. App. 2010).
96     See supra at 16-22.
                                          23
      T.R.E. 412 bars admission of a sexual-assault victim’s past sexual

behavior unless it “relates to the motive or bias of the alleged victim” or “is

constitutionally required.”97     T.R.E. 609(d) bars admission of a juvenile

adjudication unless admission is required by the federal Constitution.98

T.R.E. 608(b) prohibits impeachment of a witness by specific instances of

conduct.99 Finally, T.R.E. 402 precludes admission of irrelevant material.100

      As Appellant cannot point to a logical nexus between H.H.’s juvenile

conduct and particular bias or motive as a witness, H.H.’s juvenile conduct

falls into the general impeachment category. Essentially, Appellant wants to

argue “don’t trust H.H. because he’s a juvenile pervert.” This is classic

general impeachment that is prohibited by the Texas Rules of Evidence and

the state’s public policy of privacy for juvenile adjudications.101

      Unfortunately, to a repeat sexual predator like Appellant who has been

to prison because he picked the wrong victim in the past, a troubled victim

like H.H. may present a more promising target because of his many issues.102




97    Tex. R. Evid. 412(b)(2)(C) & (E).
98    Tex. R. Evid. 609(d).
99    Tex. R. Evid. 608(b).
100   Tex. R. Evid. 402.
101   Tex. R. Evid. 609(d).
102   R.R. 9:17-26.
                                          24
            Regardless, the Texas Rules of Evidence bar general impeachment

with specific acts of conduct and juvenile acts like H.H.’s juvenile misconduct

because it does not relate to a particular bias or motive.103

      IV.      The record reveals that no false impression about the victim
               was left with the jury.

            The trial record contradicts Appellant’s claims that a false impression

was created about the victim. Instead, the record reveals that the

prosecutor’s statements were appropriate and accurate and Appellant was

permitted extensive cross-examination about the victim’s shoplifting,

emotional issues, and pornography.

            A. The prosecutor’s questions in voir dire were appropriate,
               general questions that related to the intelligent use of
               peremptory strikes.

            Appellant’s claim that the prosecutor somehow opened-the-door to the

juvenile’s misconduct or presented a false picture of the juvenile are refuted

by the trial record which demonstrates the prosecutor was asking

appropriate, general questions to gauge juror’s feelings and beliefs about the

general area of child sexual abuse.

            General voir dire questions that do not delve into the specifics of the

instant case are permissible for an attorney to gauge the general beliefs and



103         Tex. R. Evid. 608(b); 609(d).
                                            25
feelings about the type of case being tried.104             These general, topical

questions aid the attorney in the intelligent use of peremptory strikes.105

Because of the bizarre, often counter-intuitive dynamics that exist in child

sexual abuse cases, attorneys can ask general questions that are aimed at

discovering pre-existing bias or prejudice relating to child sexual abuse.106

      Here, the prosecutor’s questions were general inquiries into the

prospective jurors’ pre-conceived beliefs about the broad area of child sexual

abuse.107 The prosecutor inquired into the broad topics of potential injuries

from sexual abuse, DNA, general grooming behavior, and the various ways

and wide range of emotions with which child victims react to sexual abuse.108

The prosecutor never presented the facts of the instant case nor asked the

jury to commit to those specific facts.109 These are the very type of general,

topical questions that are permissible to determine a juror’s general beliefs

on a topic like child sexual abuse.110




104    See Wingo v. State, 189 S.W.3d 270, 272 (Tex. Crim. App. 2006).
105    See Barajas v. State, 93 S.W.3d 36 (Tex. Crim. App. 2002) (“questions that are
not clearly improper on some other basis may be asked for purposes of intelligently
exercising peremptory challenges subject to reasonable time limits imposed by the trial
court.”)
106    See, e.g., McDonald v. State, 186 S.W.3d 86, 90 (Tex. App.—Houston [1st Dist.]
2005, no pet.).
107    R.R. 6:16-119.
108    R.R. 6:16-119.
109    R.R. 6:16-119.
110    See, e.g., McDonald, 186 S.W.3d at 90.
                                          26
      Also, Appellant alleges that the prosecutor asked if a panelist’s

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

[sexual abuse]” and claimed that this question “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.”111 First,

while the State would like to respond to Appellant’s point, neither of these

assertions in Appellant’s brief contained a record cite, so the State is unsure

as to which exchange Appellant is referring.112

      Second, in reading the prosecutor’s entire voir dire, the State could not

find any exchange that corresponds exactly to the one described here by

Appellant’s brief.113 In one exchange, the prosecutor asked a panelist about

an adult friend who was molested in her teens.114 The prosecutor asked,

“Was it difficult for her to talk about or was she able to?”115 The panelist

answered, “Not really. She didn’t have very much trouble talking about it.”116

Clearly, this exchange related to a female who didn’t have any trouble




111   See Petitioner’s Discretionary Review Brief at 22.
112   See id.
113   R.R. 6:16-120.
114   R.R. 6:51.
115   R.R. 6:51.
116   R.R. 6:51.
                                          27
discussing abuse, so it doesn’t match what Appellant describes.

Additionally, Appellant did not object to this question.117

      The State also located an exchange with a panelist who was a

counselor.118 The prosecutor asked if the counselor ever counsels “children

who are willing to talk openly about it?”119 The panelist responds “over a

period of time” but implies not when counseling first begins.120          While

Appellant’s brief states the “prosecutor asked if a panelist’s experience

confirmed a boy might be reluctant to admit it or talk about it,” the record

shows the prosecutor used the phrase “children” and did not limit the

exchange to a “boy.”121 This entire exchange was non-gender specific, was

general, and was not at all specific to the facts of this case.122 If this is the

exchange in voir dire Appellant’s brief is referencing, it does not support

Appellant’s claims of any “false impression” and certainly did not open any

doors.

      At trial Appellant never once objected to any of the questions that he

now claims on appeal show the prosecutor going into the specifics of the




117   R.R. 6:51.
118   R.R. 6:73.
119   R.R. 6:73.
120   R.R. 6:73.
121   R.R. 6:73.
122   R.R. 6:73.
                                       28
instant case.123 If Appellant believed the prosecutor was asking improper,

case-specific questions, he should have objected.124                   Regardless, the

questions Appellant references were general in nature relating to child

sexual abuse cases as a category, and not tied to the specific facts of the

instant case.125

       Such questions were legally appropriate to discover the general beliefs

of panelists relating to child sexual abuse. A proper line of voir dire questions

does not open the door for otherwise inadmissible material at trial.126

       B. The prosecutor’s statements in opening about Appellant and
          the victim were accurate and in line with what the evidence
          showed at trial.

       While Appellant’s brief hyperbolically asserts that the prosecutor

created a “false impression” and “opened any doors that could have been

opened” by his opening statement and the comments about Appellant and




123    R.R. 6:16-199.
124    The defense did object to several commitment questions if a prospective juror
only heard from one eyewitness and she believed that witness established the elements
beyond a reasonable doubt, would she return a verdict of guilty. (R.R. 6:96-97). The
court properly overruled the objections, as they were proper commitment questions.
See Lee v. State, 206 S.W. 3d 620 (Tex. Crim. App. 2006). Appellant has not
complained about this question on appeal. Regardless, as to the voir dire questions
that Appellant references as being improper, no objection was lodged before the trial
court. (R.R. 6:16-199).
125    R.R. 6:16-199.
126    See, e.g., U.S. v. Doe, 903 F.2d 16 (D.C. Cir. 1990) (explaining that proper voir
dire questions calculated to obtain a qualified and impartial jury do not open the door for
admitting otherwise inadmissible items at trial).
                                            29
H.H., actually examining the prosecutor’s statements reveal they were

accurate, truthful, and in line with what the evidence showed at trial.127

      1) The prosecutor’s statements in opening regarding H.H. were true
         and borne out by the evidence at trial.

        Oddly, Appellant claims that the prosecutor seriously mischaracterized

H.H. by asking the jury to “do [their] best to look at this through the lens of a

12, 13-year-old boy…before, during, the abuse and after…”128

        The testimony at trial revealed that H.H. was, in fact, 12-almost-13 at

the time of the offense.129 Webster’s Dictionary defines “boy” as “a male child

from birth to adulthood; an immature male.”130 Thus, the prosecutor was

accurate and truthful when he spoke of H.H. as a 12-or-13-year-old boy.

Boys process and handle things differently than do men. Also, at the time of

trial, H.H. was 17, four years older than at the time of the offense.131     The

prosecutor was asking the jury to remember H.H.’s age at the time of the

offense, which was later admitted without defense objection.132




127     See Petitioner’s Discretionary Review Brief at 23.
128     R.R. 7:16.
129     R.R. 7:23.
130     WEBSTER’S COLLEGIATE DICTIONARY (11th ed. 2004).
131     R.R. 7:23.
132     R.R. 7:23.
                                          30
        This was certainly relevant and proper as H.H.’s age at the time of the

offense of “younger than 14” was an element of the crime the prosecutor was

required by Texas law to prove.133

        Appellant asks the Court to adopt a strange rule: by referring to an

element of the charged offense, the prosecutor “opened any doors that could

possibly open.”134 Clearly, Texas law must require more to open a door to

juvenile misconduct than simply referring to an element of the charged

offense in opening statement.

      2) The prosecutor’s statements about Appellant were true and borne
         out by the evidence at trial.

        Appellant acts shocked that the prosecutor would refer to him as

cunning, opportunistic, and deceitful and would ask the jury to consider

whether the relationship between Appellant and H.H. was normal or whether

it was a “deviant, perverted relationship.”135 This shock is misplaced because

the prosecutor’s statements were true and borne out by the evidence and

when considering the nature of the charged crime.


133     C.R. 6.
134     See Petitioner’s Discretionary Review Brief at 23.
135     R.R. 7:16. While Appellant’s brief implies the prosecutor referred to Appellant in
opening as a “deviant pervert,” the record actually shows the prosecutor was
questioning the nature of Appellant’s relationship with H.H. and whether it was a
“normal” mentor/mentee relationship or whether it was a “deviant perverted
relationship.” (R.R. 7:16). The context is clear the prosecutor was asking the jury to
listen to the evidence to determine the nature of their relationship. (R.R. 7:16). At any
rate, Appellant did not lodge an objection to the prosecutor’s question. (R.R. 7:16).
                                            31
       First, the prosecutor’s statements in opening that Appellant was

cunning, opportunistic, and deceitful were confirmed by the evidence at trial.

The testimony revealed that Appellant used the youth group at church to get

close to H.H.136 Appellant then offered H.H. money to mow his yard, further

creating opportunities for them to be around each other.137 Appellant offered

a trip to Six Flags, took H.H. to multiple movies, hockey games, and out to

eat in developing their relationship.138   Appellant insinuated himself into

H.H.’s life as “an uncle figure” who was “more like family.”139 Appellant then

began to ask H.H. to “trust him more” accelerating the intimacy and secrecy

of the relationship.140 All of this grooming behavior culminated with Appellant

sexually propositioning H.H.141

       It is a truism to say that a man who uses his church youth group as a

place to meet a twelve-year-old boy, showers the boy with attention and

favors, intentionally develops the intimacy of the relationship all so that he

can sexually proposition the boy is cunning, deceitful, and opportunistic.




136.   R.R. 7:26.
137.   R.R. 7:28.
138    R.R. 7:29-32,78.
139    R.R. 7:79.
140    R.R. 7:79.
141    R.R. 7:84.
                                      32
       To rebut Appellant’s theory of fabrication, the jury heard from a

previous victim about Appellant’s pattern of predation.142 Appellant used a

similar method of attention and promises to sexually proposition and rape

that boy when he was 13.143 Specifically, Appellant groomed that child by

taking him swimming.144 Then, in exchange for the promise of a dirt bike,

Appellant had the boy fellate him.145

       Finally, the jury heard testimony from Appellant’s former close friend,

Bradley Hilbers. Mr. Hilbers related a time when he was helping Appellant

clean out a storage shed with Appellant’s items and they came across a “box

full of pictures…of [Appellant] and young boys from church in it.”146 Upon

coming across the pictures, Appellant had Mr. Hilber’s wife shred the

photos.147 Appellant acknowledged to Mr. Hilbers that these were pictures

of the boy “he was accused of molesting.”148




142     R.R. 9:16-26. While Appellant obliquely complains in his brief on the merit’s
about the admission of the testimony of Appellant’s rape of a previous boy, Appellant
failed to raise this issue in his petition for review and has, thereby, waived this
complaint. See Appellant’s Petition for Discretionary Review; see also Tex. R. App. P.
68.4(f)(g) (requiring the petition to contain a specific, separate listing of each ground for
review and an argument, with supporting authorities, amplifying said grounds).
143     R.R. 9:19-26.
144     R.R. 9:19-21.
145     R.R. 9:24.
146     R.R. 9:63.
147     R.R. 9:63-64.
148     R.R. 9:63-64.
                                             33
      Thus, as predicted by the prosecutor in opening statement, the

evidence revealed Appellant to have used his churches’ youth group to meet

H.H., to have escalated the relationship through movies and hockey games

and mowing, to have developed intimacy with H.H., all with an eye toward

sexually propositioning H.H.            Clearly, the evidence confirmed the

prosecutor’s guidepost at opening: Appellant was cunning, deceitful, and

opportunistic in pursuing and molesting H.H.

      In fact, the nature of the charged offense of aggravated sexual assault

on a child younger than fourteen implies as much.            By law, a sexual

relationship between a 12-year-old boy and an adult male is a “deviant,

perverted relationship” such that it is punishable by up to Life in prison.149

      Once again, Appellant asks this Court to adopt a strange rule: by

mentioning what evidence he expected would prove the charged crime—that

an adult male preyed upon and raped a child younger than fourteen—the

prosecutor opens any door that could be opened relating to the victim’s

juvenile offense.150 Texas law must require more than a mere recitation of

the nature of the charged offense to open a door to a juvenile offense. The

prosecutor’s statements in opening were true, accurate, borne out by the



149   See Tex. Pen. Code 22.021(e).
150   See Petitioner’s Discretionary Review Brief at 23.
                                          34
evidence, and nothing more than a statement of the nature of the charged

offense. As such, the prosecutor’s opening statement opened no door.

      C. No contradiction existed between H.H. feeling more strongly a
         wrong done to him than one he did to someone else. Rather,
         this is simple human nature.

      Appellant’s allegation that H.H. created a false impression by

contradicting himself ignores basic human nature. Specifically, Appellant

contends that the jury had a false impression about H.H. because he told the

jury he felt a weight off his shoulders when he finally disclosed Appellant’s

abuse of him, but outside the presence of the jury, he told the judge he felt

“minute guilt” over his abuse of his sister.151 In claiming that this is

contradictory (and thus created a false impression), Appellant overlooks the

basic human condition.

      As Aesop observed thousands of years ago, “The injuries we do and

those we suffer are seldom weighed in the same scales.” Aesop teaches

that it is innate to humans to feel strongly wrongs done to oneself, but quite

easy to rationalize and justify the wrongs we do to others. Thus, no inherent

contradiction existed between H.H. feeling relief about disclosing Appellant’s

sexual abuse of him, but of H.H. minimizing his guilt over his abuse of his

sister and no false impression was left with the jury.


151   See Petitioner’s Discretionary Review Brief at 25.
                                          35
      V.      As the juvenile probation was discharged in July 2010, the
              State had no ongoing influence over the witness; thus, the
              concerns of the Irby dissent relating to influence from a
              probation relationship are not implicated here. Appellant has
              candidly conceded this point.

           In Irby, the dissent raised concerns about the admissibility of a juvenile

witnesses’ probationary relationship because of the influence by the State

that such a relationship can create.152 The dissent agreed with the majority

that “a juvenile’s prior juvenile adjudication ordinarily should not be used to

attack the juvenile’s credibility in either a civil or criminal trial.”153 The dissent,

however, drew a distinction between a general attack on the credibility of a

juvenile witness with a prior offense or adjudication (which it believed to be

impermissible), and a “particular attack” focused on revealing a bias that

comes from the relationship between the State and the juvenile witness as a

result of the juvenile probation.154 When the juvenile probation relationship

raises concerns about the influence of the State over a juvenile witness, the

dissent believed this “particular attack” would then be admissible on cross-




152     See Irby, 327 S.W.3d at 160 (Tex. Crim. App. 2010) (J. Holcomb, dissenting)
(expressing concern because of the juvenile’s probationary record establishes a
relationship between the juvenile witness and the State that “raises a question about his
partiality in testifying for the State, which also supervises him as a probationer.”).
153     See id.
154     See id. at 157.
                                           36
examination to show the relationship between the State and the juvenile

witness.155

        Here, the juvenile probation was discharged almost a year before the

trial.156   Thus, at trial, the State had no ongoing influence over H.H.

Consequently, Appellant has conceded that he is not basing his appeal

“upon any ongoing State influence” over the juvenile victim based upon the

victim’s juvenile probation.157 In his brief on the merits, Appellant asserts:

“This Issue is About the Abuse not the Adjudication.”158 In addition to the fact

that the probation had been discharged well before the trial, the outcry in this

case was made months before the juvenile charges: the juvenile’s outcry in

this case happened in November 2007, the juvenile charges were filed in

May 2008, and the adjudication happened in July 2008.159 So, the outcry

occurred months before any probation or State influence over the juvenile.160

        Thus, the concerns articulated by the dissent in Irby are not implicated

in this case as H.H.’s outcry occurred months before the juvenile charges



155    See id.
156    R.R. 4:5.
157    See Appellant’s Response to State’s Motion for En Banc Reconsideration,
Johnson v. State, No. 02-11-002530-CR (Tex. App.—Fort Worth May 12, 2014) at 18.
(“H.H.’s motive to lie was not predicated upon any ongoing State influence over him.”).
158    See Petitioner’s Discretionary Review Brief at 14.
159    See Defense Exhibit 1, the May 12, 2008 Original Petition, and the July 18, 2008
Order of Probation; R.R. 8:16.
160    See id.
                                          37
and the juvenile probation was discharged nearly a year before the trial in

this cause.161 Since Appellant is not arguing “any ongoing State influence”

over the juvenile,162 his desire to use the juvenile’s misconduct constitutes a

general attack on the juvenile’s credibility which the dissent in Irby also

rejects as being improper.163

      Therefore, not only does Appellant fail the “logical nexus” test of Irby,164

but he also would fail the Irby dissent’s “particular attack” test because

Appellant has conceded that he is not claiming a bias or motive existed by

any ongoing influence of a probation relationship between the juvenile and

the State.165

                                      Prayer

      The State prays that the Court deny Appellant’s points and affirm the

judgment of the en banc majority of the Second Court of Appeals.

                                          Respectfully submitted,

                                          Maureen Shelton
                                          Criminal District Attorney
                                          Wichita County, Texas



161    See id.; R.R. 4:5.
162    See Appellant’s Response to State’s Motion for En Banc Reconsideration,
Johnson v. State, No. 02-11-002530-CR (Tex. App.—Fort Worth May 12, 2014) at 18.
163    See Irby, 327 S.W.3d at 157-58.
164.   See supra at 16-21.
165    Appellant’s Response to State’s Motion for En Banc Reconsideration, Johnson v.
State, No. 02-11-002530-CR (Tex. App.—Fort Worth May 12, 2014) at 18.
                                         38
  /s/John Gillespie
 John Gillespie
 First Asst. Criminal District Attorney
 Wichita County, Texas
 State Bar No. 24010053
 John.Gillespie@co.wichita.tx.us

 /s/Carey Jensen
 Carey Jensen
 Asst. Criminal District Attorney
 Wichita County, Texas
 State Bar No. 24083252
 Carey.Jensen@co.wichita.tx.us

 900 Seventh Street
 Wichita Falls, Texas 76301
 (940) 766-8113 phone
 (940) 766-8177 fax




39
                          Certificate of Compliance

      I certify that this document contains 8,735 words. The body text is in

14 point font, and the footnote text is in 12 point font.

                                        /s/John Gillespie
                                        John Gillespie


                            Certificate of Service

      I certify that on June 19, 2015, a true and correct copy of the above

document has been forwarded Jeff Eaves, via electronic service to

eaveslaw@att.net,      Todd     Greenwood       via   electronic   service   to

toddgreenwood@lawyer.com, as well as the State Prosecuting Attorney,

Lisa C. McMinn, via electronic service to information@spa.texas.gov.

                                        /s/John Gillespie
                                        John Gillespie




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