                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00483-CR


LEROY MCDONALD                                                   APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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         FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
                     TRIAL COURT NO. 1217644D

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

     Appellant Leroy McDonald appeals his convictions for three counts of

sexual assault of a child under the age of seventeen.2 In six points, McDonald

argues that the trial court erred by not granting his Batson challenge; by not


     1
      See Tex. R. App. P. 47.4.
     2
      See Tex. Penal Code Ann. § 22.011(a)(2) (West 2011).
allowing evidence of the complainant’s past sexual history and alleged “prior

false” sexual abuse allegations to be introduced at trial; and by failing to sustain

multiple objections to the State’s closing argument. We will affirm.

                                 II. BACKGROUND

      The complainant in this case was fourteen years old in October 2009.

McDonald was her mother’s boyfriend and lived with the complainant, her mother

(“Mother”), complainant’s younger sister (“Sister”), and complainant’s aunt.

Mother is a nurse who works nights. In 2009, doctors diagnosed Sister with

leukemia, and Mother often stayed at Cook Children’s Hospital with Sister during

chemotherapy treatments, leaving the complainant in McDonald’s care.

      During this time, with Mother’s attention and concern focused on Sister,

McDonald paid attention to the complainant. He took her to school and picked

her up, and he asked her about her day, her friends, and boys. Specifically, he

asked her if she had ever “done anything” with boys. The complainant testified

that McDonald made her feel important and that she was attracted to him.

      One evening when Mother and Sister were not at home, the complainant

removed her clothes and went over to McDonald. According to the complainant,

McDonald digitally penetrated her sexual organ, telling her that he knew it was

wrong and that he would get in trouble if anybody found out. Later, McDonald

engaged in sexual intercourse with the complainant approximately ten times, and

he also had her perform oral sex on him and masturbate in front of him. By the




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complainant’s account, McDonald generally wore condoms during intercourse,

and he told the complainant they needed to keep their activities secret.

      The complainant, who admittedly was feeling a great deal of guilt and

wanted the sexual contact to stop, eventually told C.S., a former girlfriend of her

father (“Father”), about the sexual activity between the complainant and

McDonald. The complainant asked C.S. to keep it a secret, but C.S. told Father.

Father called Mother, his ex-wife, told her about the sexual abuse, and instructed

her to call the police.

      City of Grand Prairie Police Officer David Greisinger testified at trial.

According to Greisinger, his department assigned him to investigate the

complainant’s allegations in June 2010. During his investigation, he contacted

McDonald by phone. Greisinger said that McDonald told him over the phone that

he was having difficulty getting a ride, so Greisinger gave him his contact

information. Greisinger testified that McDonald called back a few days later but

again did not have a ride, so he could not come to the station for questioning. By

Greisinger’s account, he did not hear from McDonald again until after he was

arrested.

      A jury found McDonald guilty of three counts of sexual assault of a child

under the age of seventeen and assessed punishment at two years’ confinement

on counts one and three of the State’s indictment, and ten years’ confinement on

count two, with a recommendation of a suspended sentence on count two. The




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trial court entered judgment accordingly and ordered that the sentences be

served consecutively. This appeal followed.

                                  III. DISCUSSION

      A.      Batson Challenge

      In his first point, McDonald argues that the trial court erred by failing to

grant his Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.

1712 (1986). The State argues that McDonald failed to preserve this point for

our review. We agree with the State.

      To preserve an issue for appeal, a party must make a timely and specific

objection. Tex. R. App. P. 33.1(a). For a Batson challenge to be timely, it must

be raised after the parties deliver their lists of strikes and before the court

impanels the jury. Tex. Code Crim. Proc. art. 35.261(a) (West 2006); Cooper v.

State, 791 S.W.2d 80, 81 (Tex. Crim. App. 1990).            A jury is considered

impaneled when the members of the jury have been both selected and sworn.

Hill v. State, 827 S.W.2d 860, 864 (Tex. Crim. App.), cert. denied, 506 U.S. 905

(1992).    In this case, trial counsel first raised his Batson challenge after the

parties had delivered their lists, the jury had been sworn, and the venirepanel

had been dismissed. Therefore, McDonald failed to preserve this issue for our

review and we overrule his first point.

      B.      Exclusion of Evidence Regarding Complainant’s Sexual History

      In his second point, McDonald argues that the trial court erred by ruling

that evidence of the complainant’s past sexual history and alleged “prior false”


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sexual abuse allegations were inadmissible. The State counters that the trial

court did not abuse its discretion by excluding this evidence because it did not fall

within any of the enumerated exceptions to the “rape shield” rule of evidence.

We agree with the State.

             1.    Standard of Review

      We review a trial court’s decision to admit or exclude evidence under an

abuse-of-discretion standard.    De La Paz v. State, 279 S.W.3d 336, 343–44

(Tex. Crim. App. 2009); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.

App. 1991) (op. on reh’g). As long as the trial court’s ruling falls within the zone

of reasonable disagreement, we will affirm its decision. Moses v. State, 105

S.W.3d 622, 627 (Tex. Crim. App. 2003).         We must uphold the trial court’s

decision “[i]f the ruling was correct on any theory of law applicable to the case, in

light of what was before the trial court at the time the ruling was made.” Sauceda

v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004); see also Johnson v.

State, 449 S.W.3d 240, 249 (Tex. App.—Fort Worth Oct. 9, 2014, pet. granted)

(op. on en banc reconsideration) (applying abuse-of-discretion standard to trial

court’s decision to admit evidence of sexual assault complainant’s past sexual

behavior).

             2.    Rape Shield

      Rule 412 of the Texas Rules of Evidence, known as the “rape shield” law,

governs the admissibility of a complainant’s prior sexual conduct in a sexual

assault prosecution. Tex. R. Evid. 412; Hale v. State, 140 S.W.3d 381, 396 (Tex.


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App.—Fort Worth 2004, pet. ref’d).     Rule 412 precludes evidence of specific

instances of the complainant’s past sexual behavior except under certain limited

circumstances. See Tex. R. Evid. 412(b). Because the complainant in this case

was younger than seventeen years of age at the time the alleged assaults

occurred, consent is not an issue or defense to the State’s allegations. See Tex.

Penal Code Ann. § 22.011(a)(2); Tex. R. Evid. 412(b)(2)(B). Nor is promiscuity a

defense under current law.    McGlothlin v. State, 260 S.W.3d 124, 129 (Tex.

App.—Fort Worth 2008, pet. ref’d).

            3.    Scientific or Medical Evidence

      In part of his second point, McDonald argues that the trial court erred by

not allowing him, via granting the State’s motion in limine to prohibit discussing

the complainant’s sexual history, to elicit testimony regarding the complainant’s

sexual history because the State’s expert witness who testified about the

complainant’s sexual assault exam said that the complainant “had only a partial

hymen.”

      McDonald argues that this was “scientific or medical evidence” offered by

the State and that he should have been allowed to rebut this evidence under

Rule 412(b)(2)(A).   See Tex. R. Evid. 412(b)(2)(A) (stating that evidence of

complainant’s sexual history is admissible if “necessary to rebut or explain

scientific or medical evidence offered by the prosecutor”). But McDonald did not

argue in the trial court that he wanted to elicit testimony, make opening




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argument, or otherwise introduce evidence to rebut “scientific or medical

evidence” intended to be offered by the State. Id.

      At trial, McDonald specifically cited Rule 412(b)(2)(C) and argued that he

should be able to make opening arguments, and, ostensibly, elicit testimony at

trial concerning the complainant’s motives or “bias of the alleged victim in several

different ways.” Thus, to the extent that McDonald now brings a complaint that

he should have been able to introduce evidence to rebut or explain scientific or

medical evidence introduced by the State, his argument on appeal does not

comport with his argument at trial and he has forfeited this argument for our

review. See Miller v. State, 333 S.W.3d 352, 356 (Tex. App.—Fort Worth 2010,

pet. ref’d) (citing Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002)

(“[W]hen the objection made in the trial court does not comport with the argument

made on appeal, the appellant fails to preserve the argument for our review.”)).

            4.     Other Evidence of the Complainant’s Sexual History

      In the remainder of his second point, McDonald argues “that the trial court

erred by excluding evidence of the [complainant’s] prior false allegations and

sexual history.” Specifically, McDonald argues that the trial court erred by not

allowing him to admit evidence of the complainant’s motive or bias in making her

allegations against McDonald.

      In his brief, McDonald does not coherently separate out which evidence he

complains of not being admitted. Instead, McDonald summarily provides this

court with a recitation of the objections and offers of proof he made at trial, with


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little discussion or citation to authority as to why the evidence should have been

admitted. See Tex. R. App. P. 38.1(i) (requiring brief to contain a clear and

concise argument for the contentions made). The State, however, parses these

objections into identifiable categories of evidence. Thus, in the interest of justice,

we will address the remainder of McDonald’s second point as the State has. See

Burks v. State, 876 S.W.2d 877, 908 (Tex. Crim. App. 1994) (“[W]e find that no

error is preserved. However, in the interests of justice we will address

[petitioner’s] argument.”).

             5.     Evidence of Complainant’s Pregnancy

      At trial, McDonald argued that he should have been allowed to introduce

evidence that the complainant was pregnant by a boy her age when she told C.S.

of McDonald’s alleged sexual assaults.        Specifically, McDonald argued that

evidence of her being pregnant would have helped demonstrate that the

complainant had a bias or motive to “take the heat off of herself” with her parents

by alleging she had been the victim of a crime rather than having had

unprotected sex with her boyfriend. But as the State points out, when McDonald

had an opportunity to cross-examine the complainant outside the jury’s presence,

he did not question the complainant about her pregnancy, or her parents’

reaction to it.   Furthermore, Mother and Father both testified at trial, and

McDonald did not ask for a hearing outside the jury’s presence to question them

about their reaction to the news of the complainant’s pregnancy. Moreover, the




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record indicates that the complainant never accused McDonald of being the

father of her child.

      A trial court does not abuse its discretion by excluding evidence that a

sexual assault complainant is pregnant when evidence that the complainant

accused a defendant of sexual assault out of fear of disclosure of her pregnancy

from another sexual relationship is “either nonexistent or extremely thin.”

Stephens v. State, 978 S.W.2d 728, 734–35 (Tex. App.—Austin 1998, pet. ref’d).

Additionally, under rule 412(b)(2)(C), it was McDonald’s burden to demonstrate

that a definitive and logical link existed between the complainant’s past sexual

conduct and the alleged motive or bias, and he did not do so.            See id.

(concluding that trial court properly excluded evidence that complainant was

pregnant with another man’s child when appellant allegedly sexually assaulted

her, reasoning that, among other things, the defendant failed to demonstrate a

definite and logical link between complainant’s past sexual conduct and any

alleged motive and bias); see also Tex. R. Evid. 412(b)(2)(C).

             6.        Alleged Previous “False” Accusations

      McDonald also argued at the pretrial hearing on the State’s motion in

limine that the complainant in this case had made two previous false accusations

of sexual assault. Later, during trial and outside the jury’s presence, McDonald

took the complainant on voir dire and the following exchange occurred:

      [Defense Counsel]: Do you recall having -- that you -- you have
      actually made outcry allegations against two other people of sexual
      assault, one of them was your cousin [C.]?


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[Complainant]: He is not my cousin.

[Defense Counsel]: Your friend [C.], your -- whatever he is, do you
recall that?

[Complainant]: It wasn’t a sexual assault. It was an inappropriate
incident.

[Defense Counsel]: Okay. And that happened before anything you
are alleging happened with [McDonald]?

[Complainant]: Yes, ma’am.

[Defense Counsel]: Excuse me?

[Complainant]: Yes, ma’am.

[Defense Counsel]: And then as far as your dad’s girlfriend’s son,
you allege that he sexually assaulted you in your anus?

[Complainant]: No, ma’am. Actually, that was my sister he -- yes,
ma’am. I just remember what happened, and I was in the same
room at the time that it happened.

[Defense Counsel]: Okay. And you know that PJ, you used to claim
that PJ would hump on you in a sexual manner?

[Complainant]: I can’t answer that.

[Defense Counsel]: You can’t answer that?

[Complainant]: No, ma’am.

[Defense Counsel]. Why?

[Complainant]: Because I don’t remember if I said that exactly. So I
am not going to say that I did.

[Defense Counsel]: Okay. The point is that you have accused at
least two other people of being sexually inappropriate with you, [C.]
and PJ?

[Complainant]. I guess you could say that.


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As the State points out, McDonald did not introduce evidence that these alleged

allegations were false, nor did he introduce evidence to contradict the

complainant’s testimony.

      Evidence that a child has made accusations of sexual abuse against

another is not relevant or admissible in the absence of evidence that those other

accusations were false. See Hughes v. State, 850 S.W.2d 260, 262–63 (Tex.

App.—Fort Worth 1993, pet. ref’d), (reasoning that without a showing of falsity,

such evidence does not show an interest, bias, or motive to be untruthful); see

also Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000) (holding in

aggravated sexual assault prosecution, trial court did nor err by excluding

evidence that the complainant had previously accused his mother of physical

abuse when no evidence was offered to show that the earlier accusation was

false). Because McDonald did not show that any prior allegations of assaultive

sexual conduct made by the complainant in this case were false, the trial court

did not abuse its discretion by excluding such evidence. See Lopez, 18 S.W.3d

at 222.

            7.     Other Evidence of Complainant’s Sexual History

      McDonald also seems to argue that the trial court erred by prohibiting the

testimony of two CPS workers who, according to McDonald’s second offer of

proof, would have testified about “sex toys, [] videos, and [the complainant]

having had sex with other . . . boys her age.”




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      We agree with the State that this is precisely the type of evidence that

“rape shield” laws are designed to omit from cases involving sexual assault. See

Allen v. State, 700 S.W.2d 924, 932 (Tex. Crim. App. 1985) (“Courts have a

responsibility to protect the victim from questions not within the proper bounds of

cross-examination and which are designed only to harass, annoy[,] or

humiliate.”).    Furthermore, McDonald did not establish a link between the

complainant’s alleged possession of sex toys and videos, and alleged sexual

relationships with boys her own age, and a motive or bias to lie about

McDonald’s alleged sexual assaults of her.       See Ladesic v. State, 2007 WL

2963755, at *5 (Tex. App.—Fort Worth Oct. 11, 2007, no pet.) (not designated for

publication) (holding that defendant did not demonstrate a definite and logical link

between notes describing complainant’s sexual acts with other males and

alleged motive or bias). We overrule McDonald’s second point in its entirety.

      C.        Rule 412 Hearing

      In his third point, McDonald argues that the trial court improperly failed to

hold the in camera hearing required by Texas Rule of Evidence 412(c). See Tex.

R. Evid. 412(c). This rule provides that when a defendant proposes to introduce

evidence concerning specific instances of the complainant’s past sexual behavior

and has informed the court out of hearing of the jury of his intent to do so, “[t]he

court must then conduct an in camera hearing, recorded by a court reporter, to

determine whether the proposed evidence is admissible.”            Id.   “In camera

hearing” denotes a judicial session held either in the judge’s chambers or in the


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courtroom with all spectators excluded. See LaPointe v. State, 166 S.W.3d 287,

293 (Tex. App.—Austin 2005, pet. dism’d).          The purpose of the in camera

hearing is to ensure that the court “can first hear and evaluate the probity of

evidence of an alleged victim’s sexual history in a private setting before allowing

that sensitive information to be interjected into the public domain.” Id. at 295.

      The record plainly refutes McDonald’s contention that the trial court did not

conduct a proper Rule 412 hearing. In fact, the trial court held two hearings that

complied with Rule 412. First, prior to trial and outside the presence of the jury,

the trial court allowed McDonald to make an offer of proof regarding his desired

opening arguments. McDonald stated in his offer that he would have made an

opening argument that the complainant in this case had a motive or bias in

alleging McDonald had sexually assaulted her. McDonald’s offer included his

statements that the complainant had previously made false allegations of sexual

assault, had a desire to cover up her pregnancy from a boy her age by making

these allegations, and had taken sexually explicit videos of herself on her

cellphone.

      Again after the State closed and outside the jury’s presence, the trial court

conducted another hearing where the trial court permitted McDonald to make an

additional offer of proof. In this offer, McDonald said that he desired to call two

witnesses to testify that the complainant had had sex with boys her own age and

was found with sex toys and videos. He argued that this testimony would be

presented to demonstrate that the complainant had a motive or bias in accusing


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McDonald of the alleged sexual assault. McDonald represented that these two

witnesses had already been sworn but that he wanted to forgo calling the

witnesses if the trial court would not allow their testimony, and McDonald asked

for the State to agree to his offer of proof, which the State did.

      In both instances, the trial court considered the evidence and made a

specific ruling that the testimony would be inadmissible under rule 412. These

types of hearing are the very type of hearing contemplated by rule 412(c). See

Mbata v. State, No. 03-12-00215-CR, 2014 WL 1285756, at *2 (Tex. App.—

Austin Mar. 26, 2014, pet. ref’d) (not designated for publication) (holding that trial

court properly conducted in camera hearing as required by rule 412 under almost

identical circumstances). We overrule McDonald’s third point.

      D.     Optional Completeness

      In his fourth point, McDonald argues that the trial court erred by excluding

his videotaped statement made to Greisinger after he was arrested. McDonald

argues that the videotaped statement should have come in under Texas Rule of

Evidence 107 and because the statement was necessary to explain or contradict

acts or declarations first offered by the State.      See Tex. R. Evid. 107.      We

disagree.

      Rule 107 is properly invoked when an opposing party reads part, but not

all, of a statement into evidence. Livingston v. State, 739 S.W.2d 311, 331–32

(Tex. Crim. App. 1987), cert. denied, 487 U.S. 1210 (1988); Araiza v. State, 929

S.W.2d 552, 555–56 (Tex. App.—San Antonio 1996, pet. ref’d).             In such an


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instance, the remainder of the statement “on the same subject” is admissible to

“reduce the possibility of the fact finder receiving a false impression.” Livingston,

739 S.W.2d at 331–32; Araiza, 929 S.W.2d at 555–56; see also Roman v. State,

503 S.W.2d 252, 253 (Tex. Crim. App. 1974).

      Here, McDonald points to Greisinger’s testimony wherein he states that he

had contacted McDonald by phone and asked him to come to the police station

for questioning. McDonald told Greisinger that he was having difficulty finding a

ride. Greisinger testified that McDonald did not give a statement regarding the

alleged sexual assault over the phone and that he did not give a statement until

after he was arrested. Thus, the State did not introduce any part of McDonald’s

videotaped statement through Greisinger’s testimony. Therefore, there was no

need to reduce the possibility of the jury receiving a false impression. Livingston,

739 S.W.2d at 331–32.

      Further, Greisinger’s testimony does not meet the exception to the

exclusion of self-serving declarations because the “statement [was not]

necessary to explain or contradict acts or declarations first offered by the State.”

Allridge v. State, 762 S.W.2d 146, 153 (Tex. Crim. App. 1988), cert. denied, 489

U.S. 1040 (1989).

      McDonald’s argument is that because Greisinger testified that McDonald

did not speak to him over the phone, this testimony contradicts the fact that

McDonald did eventually give the videotaped statement.             But contrary to

McDonald’s assertion, Greisinger’s testimony was that McDonald did not give


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him a statement regarding the alleged complaint until after he was arrested.

Thus, McDonald’s videotaped statement was not necessary to explain or

contradict Greisinger’s testimony—his testimony was consistent with what

McDonald now alleges on appeal. We overrule McDonald’s fourth point.

      E.     Objections to State’s Closing Argument

      In his fifth and sixth points, McDonald argues that the trial court erred by

“failing to sustain” his objections to the State’s “improper argument at guilt-

innocence.” The State argues that in three of the instances complained of, the

trial court sustained McDonald’s objections and that in the fourth instance,

McDonald failed to obtain an adverse ruling, thus forfeiting the fourth objection

for our review. We agree with the State.

      From our review of the record, it is evident that in three of the instances

complained of, the trial court sustained McDonald’s arguments. In two of them,

the trial court instructed the jury to disregard. See Bonner v. State, No. 02-10-

00059-CR, 2011 WL 3795245, at *7 (Tex. App.—Fort Worth Aug. 25, 2011, no

pet.) (mem. op, not designated for publication) (“[T]he trial court promptly

instructed the jury to disregard the complained-of statement, and we presume

that the jury followed that instruction.”). And in the fourth instance, as the State

argues, McDonald failed to obtain an adverse ruling. See Geuder v. State, 115

S.W.3d 11, 13 (Tex. Crim. App. 2003) (holding that an objection must be timely;

specific;   pursued   to   an   adverse    ruling;   and   with   two   exceptions,

contemporaneous). We overrule McDonald’s fifth and sixth points.


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                                IV. CONCLUSION

      Having overruled all six of McDonald’s points on appeal, we affirm the trial

court’s judgments.



                                                  /s/ Bill Meier

                                                  BILL MEIER
                                                  JUSTICE

PANEL: GARDNER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: May 14, 2015




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