Allen v. State

700 S.W.2d 924, 1985 Tex. Crim. App. LEXIS 1748

• Court: Court of Criminal Appeals of Texas
• Decided: December 4, 1985
• Docket: 271-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

ONION, Presiding Judge.

Appellant was convicted of aggravated rape. The jury assessed his punishment at 30 years’ imprisonment.

On appeal appellant advanced five grounds of error. The first three grounds of error read:

“The trial court erred in not allowing testimony of the prosecutrix’s prior sexual activity to refute the misleading testimony elicited by the State.

“The trial court erred in excluding evidence of the prosecutrix’s prior sexual activity which evidence was material to the defensive theory of consent.

“The trial court erred in limiting appellant’s right to fully cross-examine the prosecutrix on her prior sexual activity after she left a false impression with the jury.”

The Dallas Court of Appeals affirmed the conviction. Allen v. State, 666 S.W.2d 245 (Tex.App.-Dallas 1984). The Court of Appeals held that under V.T.C.A., Penal Code, § 21.13, evidence of prior sexual activity was not evidence of the prosecutrix’s consent to the relationship with appellant, citing Young v. State, 547 S.W.2d 23, 25 (Tex.Cr.App.1977); Wilson v. State, 548 S.W.2d 51, 52 (Tex.Cr.App.1977). Further, the Court of Appeals found the evidence was properly excluded when offered for the purpose of impeaching the prosecu-trix’s credibility.¹

Three of appellant’s grounds of review in his petition for discretionary review correspond to aforesaid grounds of error. Concluding that the Court of Appeals reached the correct result as to inadmissibility of the evidence on the issue of consent, we granted appellant’s said petition to determine the correctness of the Court of Appeals’ holding as to inadmissibility of the evidence for the purpose of impeaching the credibility of the prosecutrix. Thus, we shall consider appellant’s first and third grounds of review.

Prior to trial the court granted the State’s motion in limine to prohibit the appellant from inquiring into the prosecu-trix’s sexual conduct other than that involved in the alleged offense without an in-camera hearing as contemplated by V.T. C.A., Penal Code, § 21.13, then in effect.

The prosecutrix was the State’s first witness. The 17-year-old prosecutrix testified that about 9:40 p.m. on the night of February 1, 1982, she left her place of employment, a department store in the Collin Creek Mall in Plano. As she reached her car in the mall parking lot, appellant drove up in a pickup truck. She did not know him. At gunpoint he abducted the prosecu-trix and drove to a spot in rural Collin County, forcing her to remove her clothing along the way. There the prosecutrix related the appellant raped² her and threatened to “find her” if she told anyone what had happened. He drove her back to the mall parking lot, where her father was waiting for her near her car. Appellant released the prosecutrix nearby. She stated later that night she was examined at the hospital and made a report to the police.

Early on, the prosecutrix testified on direct examination, that appellant told her he would take her home after she made love to him. She refused and asked to be taken home because her parents would worry if she wasn’t home by 10 p.m. He suggested she tell her parents she had gone for a drink with friends. She told him she was under age and couldn’t drink. The record then reflects:

“Q Did he ask you any question after that, after he suggested you tell your parents you had gone for a drink?

“A I don’t recall.

“Q “Did he say anything else to you at that point?

“A Yes, he did.

“Q What else did he say? .

“A He asked me if I was a virgin.

“Q Did you answer his question?

“A Yes, I did.

“Q What did you tell him?

“A I told him, No.

“Q Why did you tell him that?

“A Because I thought if I told him, Yes, I was, that he would certainly want more.

“Q Were you frightened at that point?

“A Yes, I was.

“Q What was he doing with the gun as you were driving north on Parker?

“A He had it pointed toward me.”

Shortly after cross-examination commenced the court conducted an in-camera hearing as contemplated by V.T.C.A., Penal Code, § 21.13(b). At such hearing the prosecutrix testified she was not a virgin at the time of the alleged offense, that she had an older boyfriend (naming him) who attended Baylor University with whom she had had sexual relations, and they last had sexual intercourse approximately two weeks before the alleged offense. The prosecutrix related after the alleged offense she told the examining doctor she was not a virgin before the offense, but she had not yet told her father, who was a strong disciplinarian. At the conclusion of the hearing, the court denied appellant the opportunity to elicit from the prosecutrix in the jury’s presence the foregoing evidence. From this action of the court springs the grounds of review.

The State in its case-in-chief also called the prosecutrix’s father, who testified as to his actions on the night in question. From his testimony it is clear he was a strong disciplinarian. The State further offered evidence that when appellant was arrested the next day a .22 caliber revolver was found in his pickup truck. Appellant’s extrajudicial confession was introduced in which he related that he ordered the prose-cutrix, whom he did not know, to get into his truck as he “had a gun,” and that she did what he asked of her because she was afraid of guns. He could not remember whether “we completed sexual intercourse or not.”

Appellant offered evidence from one witness that he and appellant each had 12 or 13 beers between noon and 6 p.m. on the day in question. Appellant’s wife testified when she saw him at 7:30 p.m. he was intoxicated and she would not go to a club in Dallas with him for that reason. According to appellant’s testimony, he had had about 22 beers and purchased another six-pack sometime before the alleged offense. He testified the prosecutrix voluntarily entered his truck after he offered her a drink. He stated when the prosecutrix got in the truck his gun and holster were on the seat where it had been since the previous weekend, when he had been hunting, that he showed it to her and placed it under the seat. He claimed he was drunk, and did not achieve an erection and the sexual act was not completed but that the prosecutrix had consented to sexual advances. Appellant drove her back to the mall parking lot where he saw a man standing by the prosecutrix’s car and she asked him to suggest some excuse to give her father for being out with him (appellant).

Appellant related that during their conversations that night the prosecutrix told him she had a boyfriend who went to Baylor University. He did not relate whether there was any discussion about whether the prosecutrix was a virgin. No issue was made of the fact.

The appellant called the examining physician, Dr. Ivan Rovner, who testified he found no evidence of actual penetration. He found no evidence of trauma, bruising or of lacerations. Further, appellant elicited from the medical witness he did not find any physical evidence of any type of sexual conduct within the recent past. On cross-examination Dr. Rovner testified that it was possible for there to have been penetration of a vagina by the male sexual organ without any physical evidence being left.

Appellant called a co-worker of the pros-ecutrix who testified she had recently attended a graduation party at a hotel given by the prosecutrix and another girl, that the prosecutrix was there with her boyfriend (giving his name) and the prosecu-trix was drinking.

From the court’s action under § 21.13 following the in-camera hearing arises appellant’s complaint that the prosecutrix left a false impression with the jury and he was thus unable to refute the misleading testimony elicited by the State. Appellant argues that the prosecutrix was not a virgin, had had sexual intercourse with her boyfriend, that her father was still unaware of that fact, and that this demonstrates a motive for her trial testimony. Appellant also argues that a defendant is entitled to the full confrontation and cross-examination of the witnesses against him, Sixth Amendment, United States Constitution, and Article I, § 10, Texas Constitution, and that any statute which prevents such confrontation and cross-examination must fall. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

V.T.C.A., Penal Code, § 21.13, in effect at the time of appellant’s trial,³ read:

“(a) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct may be admitted under Sections 21.02 through 21.05 of this code (rape, aggravated rape, sexual abuse, and aggravated sexual abuse) only if, and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

“(b) If the defendant proposes to ask any question concerning specific instances, opinion evidence, or reputation evidence of the victim’s sexual conduct, either by direct examination or cross-examination of any witness, the defendant must inform the court out of the hearing of the jury prior to asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under Subsection (a) of this section. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits nor refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.

“(c) The court shall seal the record of the in camera hearing required in Subsection (b) of this section for delivery to the appellate court in the event of an appeal.

“(d) This section does not limit the right of the state or the accused to impeach credibility by showing prior felony convictions nor the right of the accused to produce evidence of promiscuous sexual conduct of a child 14 years old or older as a defense to rape of a child, sexual abuse of a child, or indecency with a child. If evidence of a previous felony conviction involving sexual conduct or evidence of promiscuous sexual conduct is admitted, the court shall instruct the jury as to the purpose of the evidence and as to its limited use.” [Added by Acts 1975, 64th Leg., p. 477, ch. 203, § 3, eff. Sept. 1, 1975.] (Hereinafter referred to as § 21.13.)

Before 1975, Texas had no statute concerning the admissibility of a rape victim’s prior sexual conduct. The law concerning the admissibility of such evidence was developed by the courts. In enacting § 21.13, Texas joined Congress and many other states in enacting rape shield laws. See generally Berger, Man’s Trial, Woman’s Tribulation: Rape Cases In the Courtroom, 77 Colum.L.Rev. 1 (1977); Weddington, Rape Law In Texas: H.B. 284 and the Road to Reform, 4 Am.J.Crim.L. 1 (1975).

In Bell v. Harrison, 670 F.2d 656, 658 (6th Cir.1982), the Court wrote:

“The rationale behind these statutes is that evidence of a rape victim’s prior sexual activity is of dubious probative value and relevance and is highly embarrassing and prejudicial. Often such evidence has been used to harass the prosecuting victim. Sponsors of these statutes assert that they encourage victims of sexual assault to report the crimes without fear of having their past sexual history exposed to the public.”

There can be little doubt that § 21.13 represents an explicit legislative decision to eliminate trial practices which may have effectually frustrated society’s vital interest in the prosecution of sexual crimes.

The standard of admissibility of evidence under § 21.13 has two parts. First, the evidence must be material to an issue in the case, and secondly, even if the court finds the evidence is material to an issue in the case, its inflammatory or prejudicial nature must not outweigh its probative value. See and cf. State v. Herrera, 92 N.M. 7, 582 P.2d 384 (Ct. of Appeals 1978) (cert. den. 1978).

If a defendant claims a victim’s past sexual conduct is relevant, it is up to the defendant to make a preliminary showing that the issue is material to an issue in the case. This is not raised by merely asserting that it is so. There must be a showing of a reasonable basis for believing that the past sexual conduct is pertinent. If there is no such showing, questions concerning past sexual conduct are to be excluded. If such a showing of relevancy is made, the balancing test of § 21.13 is to be applied in determining admissibility.

In Baylor Law Review, Vol. 31, p. 317, Rape—Admissibility of Victim’s Prior Sexual Conduct: What is the Law in Texas?, it was written:

“Before the enactment of section 21.-13, evidence of prior sexual conduct was admissible to impeach the credibility of the complainant in three instances: to rebut a complainant’s testimony, to establish a course of conduct indicating prostitution, and to show felonies and misdemeanors involving moral turpitude. Under section 21.13, evidence of prior sexual conduct should be admissible to rebut testimony of the complainant, however, the testimony must first meet the burden of materiality and superior probative value imposed by section 21.13.”

Where the balancing test has been met, where the balance inclines toward the accused, Texas trial courts are free and should not hesitate to admit evidence of the victim’s prior sexual conduct to attack her credibility, to impeach her, if it does. A reading of § 21.13 demonstrates it was not designed to forever prohibit all evidence of specific instances of the victim’s sexual conduct or opinion or reputation evidence of such conduct.⁴ If the evidence of the victim’s sexual conduct as contemplated by the statute becomes material to an issue in the case and meets the balancing test, it is admissible even if it is in the form of impeachment evidence. Further, subsection (d) expressly provides § 21.13 does not limit the right to impeach credibility by showing prior felony convictions nor the right of a defendant to produce evidence of promiscuous sexual conduct of a child 14 years old or older as a defense to rape of a child, sexual abuse of a child or indecency with a child. The Court of Appeals misreads the statute and particularly subsection (d) in arriving at the conclusion that § 21.13 does not contemplate the admission of evidence of prior sexual conduct for impeachment purposes unless the evidence is in the form of a prior felony conviction.

In the instant case the prosecutrix testified that after the abduction at gunpoint, the appellant inquired, among other things, if she was a virgin. She answered him in the negative and explained in her testimony why she did so under the circumstances. She did not assert that at the time she was in fact a virgin. Whether she was or was not a virgin was not material to an issue in the case. Even if the evidence was relevant and material to an issue, its inflammatory or prejudicial nature certainly outweighed its probative value, if any. The appellant failed to establish his right to attack the credibility of the prosecutrix with her prior sexual conduct under the guidelines of § 21.13. The trial court properly excluded the offered testimony under § 21.13.⁵

We must next consider appellant’s attack upon § 21.13 as being violative of the Sixth Amendment and Article I, § 10, Texas Constitution.

There have been numerous attacks upon the so-called rape shield statutes as viola-tive of the Sixth Amendment and these generally have been rejected. 1 A.L.R. 4th 283 (1979); Bell v. Harrison, supra; Sanford and Bocchino, Rape Shield Laws and Sixth Amendment, 128 V.Pa.L.Rev. 544 (1980); Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the Courtroom, 77 Colum.L.Rev. 1 (1977).

In North Carolina v. Fortney, 301 N.C. 31, 269 S.E.2d 110 (N.C.1980), the Supreme Court of North Carolina upheld the constitutionality of that state’s rape shield law (G.S., § 8, 58.6). There the court wrote:

“Defendant is mistaken on several grounds. First, there is no constitutional right to ask a witness questions that are irrelevant. People v. McKenna, 196 Colo. 367, 585 P.2d 275 (1978); People v. Blackburn, 56 Cal.App.3d 685, 128 Cal.Rptr. 864 (1976); People v. Thompson, 76 Mich.App. 705, 257 N.W.2d 268 (1977); Smith v. Commonwealth, 566 S.W.2d 181 (Ky.App.1978).

“Second, in its impact and application, this statute is primarily procedural and does not alter any of defendant’s substantive rights. And third, there are valid policy reasons, aside from relevance questions, which support this statute.

“The sixth amendment of the Constitution, made applicable to state criminal proceedings by Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), guarantees the right of an accused in a criminal trial to be confronted with the witnesses against him. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). However, the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process, Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297, 3098 (1973), citing Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). See also Davis v. Alaska, supra 415 U.S. at 321, 94 S.Ct. at 1112— 13, 39 L.Ed.2d at 356 (Stewart, J., concurring).

Thus, while a defendant may generally cross:examine to impugn the credibility of a witness, this right is not inviolate. Indeed the Supreme Court has expressly stated that a court has a duty to protect a witness ‘from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him.' Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624, 629 (1931) quoted in Davis v. Alaska, supra, 415 U.S. at 320, 94 S.Ct. at 1112, 39 L.Ed.2d at 356. Implicit in this statement is the recognition that in such cross-examination, the probative value of any admission is outweighed by its prejudicial effect. The question of the proper scope of cross-examination, therefore, involves resolving the ‘tension between the right of confrontation and the State’s policy of protecting the witness.... ’ Davis v. Alaska, supra at 314, 94 S.Ct. at 1109, 39 L.Ed.2d at 352.... [269 S.E.2d at 112, 113.]

“The idea that any previous sexual behavior of a rape victim is per se relevant to a rape proceeding was based on two views of human behavior which no longer withstand the scrutiny of rational investigation....

“This is not to say, however, that evidence of a victim’s prior sexual behavior can never be relevant to an issue presented at trial. As we construe its language and permissible application, the rape victim shield law, G.S. 8-58.6, codifies primarily procedural rules and thus does not unduly impinge upon defendant’s substantive right to confront his accusing witness. Unlike the situation in Davis v. Alaska, supra, where the defendant was totally prevented by an Alaskan witness protection law from cross-examining a witness against him about a fact that would give rise to a reasonable supposition of bias, and unlike the situation in Chambers v. Mississippi, supra, again where state law totally prevented a defendant from presenting evidence that another had confessed to the crime charged, G.S. 8-58.6 contains no such total prohibitions. Thus, although statutory, the rape victim shield law is analogous to judge-made rules of evidence which prevent the admission of opinion evidence, hearsay testimony and convictions of very old standing where the probative value of the evidence is outweighed by the possibility of jury prejudice. No one seriously considers that the policy decision not to admit such analogous evidence is on its face a violation of the fifth or sixth amendment ... If any question arises concerning evidence of a victim’s prior sexual history, that question may be presented at an in camera hearing where opposing counsel may present evidence, cross-examine witnesses and generally attempt to discern the relevance of proffered testimony in the crucible of an adversarial proceeding away from the jury. In summary, then, G.S. 8-58.6 merely contains and channels long-held tenents of relevance by providing a statutory definition of that relevance and by providing a procedure to test that definition within the context of any particular case. Defendant’s substantive right to cross-examine is not im-permissibly compromised.”

While the North Carolina statute is not totally like § 21.13, it is similar in many respects and the language in Fortney is here instructive.

“Of course rape shield statutes should not be used to exclude highly relevant evidence and violate the defendant’s right of confrontation or other constitutional rights.” Bell v. Harrison, supra, 670 F.2d at p. 658. Courts have a responsibility to protect the victim from questions not within the proper bounds of cross-examination and which are designed only to har-rass, annoy or humiliate. See, e.g., Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931); State v. Davis, 269 N.W.2d 434, 438 (Iowa 1978); A.B.A. Standards for Criminal Justice, standards 6-2.2, 6-2.3 (2d ed. 1980). This is part of the thrust of the rape shield laws. “In order to assess the rape shield laws one must ask whether these state interests, as embodied in particular statutory standards applied in specific factual contexts, outweigh the defendant’s valued right to meet the prosecution's case with proof that he is indeed innocent. Where the balance inclines toward the accused, any provision excluding his evidence cannot be squared with the Constitution.” Berger, Man’s Trial, Woman’s Tribulation: Rape Cases in the' Courtroom, 77 Colum.L.Rev. 1, 54-55 (1977).

The constitutional right to confront adverse witnesses is fundamental and is of such importance that a State’s interest in protecting a certain class of witnesses from embarrassment must fall before the right of confrontation and cross-examination. Thus a statute that purports to prohibit completely the introduction of the victim’s consensual sexual activity with persons other than the defendant is unconstitutional unless given a judicial gloss requiring a hearing out of the jury’s presence so that the defendant, upon motion, may be given an opportunity to demonstrate that due process requires the admission of such evidence because probative value in the context of that particular case outweighs its prejudicial effect on the prosecutrix. State v. Howard, 121 N.H. 53, 426 A.2d 457 (N.H.1981). See also State v. LaClair, 433 A.2d 1326 (N.H.1981).

We conclude that § 21.13 is constitutional on its face and as applied to the appellant in the instant case. We reject his claim that it is violative of the Sixth Amendment and Article I, § 10, Texas Constitution. We also reject his claim that the Fifth and Fourteenth Amendments were violated in the instant case. Due process was accorded the appellant for the reasons stated. See also Article I, § 19, Texas Constitution.

In arguing that the prosecutrix left a false impression with the jury and he was unable to refute the misleading testimony elicited by the State, appellant cites several cases dealing with suppression of evidence by the prosecution. The reliance upon such cases is misplaced. Here the appellant knew of the evidence during the trial, see Means v. State, 429 S.W.2d 490, 496 (Tex.Cr.App.1968), but was unable to refute it for the reasons already discussed. Further, there is no showing that the prosecutor deliberately presented a false picture of the facts by knowingly using perjured testimony or failing to correct its own testimony when it became apparent it was false. Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Appellant’s grounds of review are overruled.

Although the Court of Appeals was in error in holding that impeachment was limited under § 21.13 to the use of prior felony convictions, the court reached the right result. The judgment of the Court of Appeals is affirmed.

McCORMICK, J., dissents.

1 . The Court of Appeals wrote:

“Appellant also contends that the evidence should have been admitted for the purpose of impeaching complainant’s credibility. Subsection (a) of Sec. 21.13 allows admission of evidence of complainant’s prior sexual activity ‘only if, and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case.’ Subsection (d) of Sec. 21.13 states that *[t]his section does not limit the right of the state or the accused to impeach credibility by showing prior felony conviction....’ Thus, the statute does not contemplate the admission of evidence of pri- or sexual conduct for impeachment purposes unless the evidence is in the form of a prior felony conviction."

2 . The prosecutrix testified that appellant’s penis penetrated her vagina, but she did not believe he had "any kind of an erection” or reached a climax.

3 . Section 21.13 has since been renumbered as § 22.065 and amended by Acts 1983, 68th Leg., p. 5315, ch. 977, § 4, eff. Sept. 1, 1983. See also Proposed Rules of Criminal Evidence, Rule 412, Texas Bar Journal, Vol. 48, No. 8, p. 933, September 1985.

4 . There are some cases in which prior sexual conduct may become relevant and its probative value outweigh the detrimental impact of its introduction. See State v. Johns, 615 P.2d 1260, 1263-64 (Utah 1980); Commonwealth v. Joyce, 382 Mass. 222, 415 N.E.2d 181, 185 (1981); State v. LaClair, 121 N.H. 743, 433 A.2d 1326 (1981).

In State v. LaClair, supra, the Court wrote:

"As we have stated above, State v. Howard [121 N.H. 53, 426 A.2d 457 (1981) ] established that the protection from undue harassment afforded to a prosecutrix by RSA 632-A6 (Supp.1979) [rape shield statute] must yield to the defendant’s right to confront the evidence against him. The sexual activities of a prose-cutrix immediately prior to an alleged rape may be a relevant area for cross-examination. United States v. Kasto, 584 F.2d 268, 272 (8th Cir.1978); see State ex rel. Pope v. Superior Court, 113 Ariz. 22, 29, 545 P.2d 946, 953 (1976) (in banc). This is especially true where, as here, the evidence of prior sexual activities might explain physical injuries of the prosecutrix, State v. Murphy, 134 Vt. 106, 111-12, 353 A.2d 346, 350 (1976), or the origin of semen. State ex rel Pope v. Superior Court, supra 113 Ariz. at 29, 545 P.2d at 953; Pack v. State, 571 P.2d 241, 245-46 (Wyo.1977). In such- cases, however, the defendant must establish through medical evidence that the particular prior sexual activities of the prosecu-trix that he desires to raise are relevant to her physical condition. See State v. Williams, 18 Wash.App. 398, 402-03, 569 P.2d 1190, 1192-93 (1977). For example, where the defendant, in an attempt to establish that the presence of motile sperm in the prosecutrix’s vagina at the time of a medical examination conducted after the alleged rape is not inconsistent with his denial of intercourse, seeks to introduce evidence of the victim’s past sexual activities, he must be able to show through medical evidence that sperm could remain motile from the time of the prior sexual intercourse to the examination conducted after the alleged rape. Pack v. State, supra at 245.” (Emphasis supplied in view of Judge Miller’s opinion.)

5 . It must be remembered that our interpretation is only of § 21.13 in effect at the time. See now V.T.C.A., Penal Code, § 22.065 and Rule 412, proposed Texas Rules of Criminal Evidence, Texas Bar Journal, Vol. 48, No. 8, p. 933, September, 1985.