                                       NO. 12-14-00266-CR

                              IN THE COURT OF APPEALS

                 TWELFTH COURT OF APPEALS DISTRICT

                                           TYLER, TEXAS

RAYMOND SMITH, JR.,                                     §        APPEAL FROM THE 159TH
APPELLANT

V.                                                      §        JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                                §        ANGELINA COUNTY, TEXAS

                                       MEMORANDUM OPINION
       Raymond Smith, Jr. appeals his conviction for three counts of indecency with a child. In
one issue, Appellant challenges the trial court’s exclusion of certain evidence. We affirm.


                                                BACKGROUND
       The State indicted Appellant on three counts of aggravated sexual assault with a child
(counts one, two, and three) and four counts of indecency with a child (counts four, five, six, and
seven). These counts alleged abuse against Jane Doe, Appellant’s stepdaughter, and Beth Doe,
his niece.1 Appellant pleaded “not guilty” to all counts. Because of the jury’s inability to reach a
verdict on counts one through three, the trial court granted a mistrial as to those counts. The jury
found Appellant “not guilty” on count six, but found him “guilty” on counts four and five
regarding abuse against Beth and count seven regarding abuse against Jane. The trial court
sentenced Appellant to imprisonment for twenty years on each count, to run consecutively.




       1
           Jane Doe and Beth Doe are pseudonyms used at trial.
                                    EXCLUSION OF EVIDENCE
        In his sole issue, Appellant challenges the trial court’s exclusion of testimony regarding
an outcry of sexual abuse involving a different individual. He relies on Texas Rule of Evidence
412 to support his position that the testimony was admissible.
Facts
        At a pretrial hearing, Beth’s mother testified that Jane made allegations against both
Appellant and Beth’s father, Donald, at the same time.           She explained that the two girls
accidentally encountered Donald, who was urinating behind a building. Deputy Mary Jordan of
the Houston County Sheriff’s Office testified that the grand jury returned a “No Bill” as to the
charges against Donald.
        At trial, Jane testified that, at one time, she denied being abused by Appellant. She
admitted that she disclosed the abuse after an argument between Appellant and Jane’s aunt, in
which Jane defended her aunt and became angry with Appellant. During the testimony of
Investigator Kendall Stewart of the Angelina County Sheriff’s Office, Appellant sought to ask
about Jane’s outcry against Donald. According to Appellant, the jury was under the impression
that Jane made only one outcry. Appellant argued that (1) the jury needed to hear the entire
context of the outcry; (2) the State intended to admit evidence that the girls showed signs of
sexual abuse, which the jury might falsely attribute to Appellant when there may be another
explanation; and (3) the jury would be evaluating the girls’ credibility. Investigator Stewart told
the trial court that he was unaware that Jane made an outcry against Donald during either her
initial outcry or her interview at the advocacy center. The State argued that the evidence was
irrelevant and inadmissible under Texas Rule of Evidence 412. The trial court sustained the
State’s objection.
        Subsequently, the State called Dr. Debra Burton, a licensed professional counselor, for
purposes of providing general testimony regarding child abuse victims. Appellant sought to
question Dr. Burton about Jane’s outcry against Donald. He argued that the jury could interpret
Dr. Burton’s testimony as saying that the girls must have been sexually abused by Appellant. He
suggested that the proffered evidence was necessary to explain Dr. Burton’s testimony, as it
would be misleading to leave the jurors with only one suggestion of sexual abuse. The trial court
refused to allow Appellant to question Dr. Burton about Jane’s allegations against Donald.




                                                2
       During an offer of proof, defense counsel elicited testimony from Jane’s mother that
Jane’s outcry included allegations of abuse against both Donald and Appellant. She testified that
Jane was upset and crying during the outcry, which she believed could have been somewhat
attributable to the allegations against Donald. She also testified that Beth was present during the
outcry. Appellant argued that the testimony established Jane was upset over both outcries, not
just the outcry against him. He argued that Beth’s presence at the outcry was relevant to her
reasons for making her own outcry against Appellant. He also maintained that exclusion of the
evidence left the jury with a false impression. The State objected on grounds that (1) the
evidence was irrelevant because the alleged offense occurred in a different county, and (2) Texas
Rule of Evidence 403 prohibited admission of the evidence because it was not probative and
could confuse the jury. In accordance with its previous rulings, the trial court excluded the
evidence.
Standard of Review and Applicable Law
       We review a trial court’s evidentiary rulings under an abuse of discretion standard.
Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The trial court abuses its
discretion when its ruling lies outside the zone of reasonable disagreement. Id.
       Texas Rule of Evidence 412 identifies five circumstances in which specific instances of a
victim’s past sexual behavior is admissible if the evidence’s probative value outweighs the
danger of unfair prejudice. TEX. R. EVID. 412(b)(2), (3). Rule 412 does not apply to offenses of
indecency with a child, for which Appellant was convicted. See TEX. R. EVID. 412; see also
Reyna v. State, 168 S.W.3d 173, 176 (Tex. Crim. App. 2005). Accordingly, we must review the
excluded evidence’s admissibility under other rules of evidence. See Hammer v. State, 296
S.W.3d 555, 563–68 (Tex. Crim. App. 2009).
       A party may cross-examine a witness on any relevant matter, including credibility. TEX.
R. EVID. 611(b). Evidence is relevant when it has a tendency to make a fact more or less
probable than it would be without the evidence and that fact is of consequence in determining the
action. TEX. R. EVID. 401. Generally, specific instances of conduct cannot be inquired into for
the purpose of attacking or supporting a witness’s credibility. See TEX. R. EVID. 608(b). Crimes,
wrongs, or other acts may be admissible to prove motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. See TEX. R. EVID. 404(b)(2). The
evidence may also be admissible to demonstrate the witness’s bias or interest. See TEX. R. EVID.



                                                3
613(b).     Even relevant evidence must be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue
delay, or needless presentation of cumulative evidence. TEX. R. EVID. 403.
Analysis
          Appellant’s offer of proof established that Jane’s outcry included allegations of sexual
abuse against both Donald and Appellant, Jane’s emotional state during the outcry could have
been attributable to abuse by both men, and Beth was present to hear the allegations against her
father. This evidence does not amount to either reputation or opinion evidence that could be
used to attack a witness’s credibility. See TEX. R. EVID. 608(a)(b). However, specific instances
of a victim’s conduct may be admissible to prove bias, self-interest, or motive for testifying. See
TEX. R. EVID. 404(b)(2), 613(b); see also Hammer, 296 S.W.3d at 563. Appellant presented
evidence that Jane outcried only after becoming angry with Appellant, thereby raising an
inference that her allegations may have been false or retaliatory. The excluded evidence does not
make it more or less probable that Beth or Jane falsified allegations against Appellant. See TEX.
R. EVID. 401(a). There is no nexus, or logical connection, between the excluded evidence and
any potential bias, motive, or interest against Appellant. See Woods v. State, 152 S.W.3d 105,
111-12 (Tex. Crim. App. 2004); see also Hernandez v. State, No. 03-13-00186-CR, 2014 WL
7474212, at *5 (Tex. App.—Austin Dec. 30, 2014, no pet.) (mem. op., not designated for
publication).
          Nor does the excluded evidence make it more or less probable that Appellant sexually
abused Jane and Beth. See TEX. R. EVID. 401(a). The excluded evidence demonstrates that
Donald may have been an additional perpetrator, but does not establish that Donald, instead of
Appellant, sexually assaulted the girls. See James v. State, No. 03-12-00462-CR, 2014 WL
2957751, at *6 (Tex. App.—Austin June 27, 2014, pet. ref’d) (mem. op., not designated for
publication). Additionally, the trial court could reasonably conclude that Appellant’s proffered
evidence had a tendency to distract the jury from the primary issues in the case. See TEX. R.
EVID. 403; see also Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007).
          Under these circumstances, we conclude that the trial court’s decision to exclude
evidence of Jane’s allegations against Donald was within the zone of reasonable disagreement,
and not an abuse of discretion. See Martinez, 327 S.W.3d at 736. Because the trial court did not
abuse its discretion by excluding Appellant’s proffered evidence, we overrule his sole issue.



                                                 4
                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.



                                                                 JAMES T. WORTHEN
                                                                    Chief Justice



Opinion delivered June 30, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          5
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 30, 2016


                                         NO. 12-14-00266-CR


                                      RAYMOND SMITH, JR.,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 159th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2014-0261)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                    It is therefore ORDERED, ADJUDGED and DECREED that the judgment of
the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
