Chew v. State

804 S.W.2d 633, 1991 Tex. App. LEXIS 589, 1991 WL 31266

• Court: Court of Appeals of Texas
• Decided: February 20, 1991
• Docket: 04-89-00149-CR
• Status: Published

Opinions

ON APPELLEE’S MOTION FOR REHEARING EN BANC

CHAPA, Justice.

Appellee’s motion for rehearing is denied by this court sitting en banc. The opinion of November 7, 1990 is withdrawn, and the following is now filed as the opinion of this court.

We hold that reversible error was committed when 1) the appellant was refused his constitutional right of confrontation, and 2) appellant’s motion for new trial, based on jury misconduct and newly available evidence, was denied.

The appellant was tried for kidnapping aggravated by an intent to commit sexual assault, which the State clearly attempted to establish by evidence of an actual sexual assault upon the complainant. Before the jury was impaneled, the court was advised by the prosecution that they wished to present a motion to dismiss because the complainant no longer wished to press charges. The court was advised that the complainant had signed an affidavit to that effect, contending media harassment. At the suggestion of the court, the jury was impaneled and the motion was then presented to the court out of the hearing of the jury. The court ordered the complainant to testify “under penalty of contempt of court,” and the complainant then agreed to testify.

It is apparent from the record that the only defense the appellant relied on was based upon the consent of the complainant. From the outset, the appellant clearly made it known to the court that in presenting his defense, he would exercise his constitutional right of confrontation and would show bias and motive on the part of the complainant to falsely allege lack of consent. Lack of consent, being critical to the charge of aggravated kidnapping as well as to the sexual assault which formed the evidentiary base for the aggravation, thus immediately became the central focal point of contention.

With the prosecution and defense presenting conflicting evidence as to consent or lack thereof, the evidence disclosed that the complainant was picked up late at night, when returning from a party, by the appellant and others in a car; that she was taken to a ranch where cock fights were taking place; that at the ranch, varied sexual activities took place between the complainant and a number of men, including the appellant, and; that the appellant and others who had taken her to the ranch, left her there to return with someone else. The prosecution contended that all of this took place against the complainant’s will, while the defense insisted that she consented to each of these acts.

Because the trial court granted the State’s motion in limine prior to the trial, excluding any evidence of the complainant’s subsequent sexual misconduct, the appellant presented considerable and significant evidence in a bill of exceptions. The bill of exceptions reveals testimony by a number of men describing numerous separate sexual encounters between the complainant and several men at the same time, which took place in the complainant’s home, in other homes, and in vehicles. The testimony disclosed that these encounters had taken place between the time of the incident in question and up to just thirty (30) days before this trial. These men also testified that the complainant not only participated willingly but at times instigated the sexual encounters, even with men who were complete strangers.

During the trial, the appellant presented the testimony of Dr. Lawrence Taylor, a qualified psychiatrist with expertise in sexual disorders. Dr. Taylor described the illness of “nymphomania” as a condition occasionally found in females, consisting of an unmanageable sexual desire which results in dramatic frequency of sexual contact with a partner as well as indiscriminate sexual contact with groups. Dr. Taylor testified that it was not uncommon for females afflicted with this illness to attempt to hide their condition from the general public as well as from their own family, and further, that those afflicted very seldom seek medical attention on their own. The trial court, however, prohibited the appellant from posing a hypothetical question to the doctor based on the evidence adduced in the bill of exceptions, ruling that the question would be permitted only outside the hearing of the jury.

In the court’s chambers, outside the hearing of the jury, Dr. Taylor was posed a hypothetical question with the facts adduced in the bill of exceptions about the complainant’s alleged consensual sexual misconduct subsequent to the occasion in question. He responded that the facts were “in keeping with a diagnosis of nymphomania.” The doctor further testified that when females afflicted with this illness are caught or confronted, they have a tendency “to cover up you might say but that would not stop them usually.” He testified that he meant that such a person, even after being caught or confronted, would usually “continue on with the sexual promiscuity and the amount and number of people.” In response to questions by the prosecution, out of the hearing of the jury, Dr. Taylor stated that a female so afflicted could possibly be raped but that it was not probable. The court prohibited all the evidence adduced in the bill of exceptions, including the critical part of Dr. Taylor’s testimony, from being presented to the jury; the court also prohibited cross-examination of the complainant on the same subject. In so doing, the court erred.

The issue here is the application of the Sixth Amendment of the Constitution of the United States which provides:

In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ....

U.S. CONST, amend. VI. (Emphasis added.)

The Texas Court of Criminal Appeals has clearly directed that the Sixth Amendment must be liberally construed in order that an accused may receive all the protection intended by the Constitution. See Evans v. State, 519 S.W.2d 868, 871-72 (Tex.Crim.App.1975). In Evans, the court held it was reversible error to exclude evidence that the State’s witness was under indictment for sodomy at the time of trial. Id. at 873. The court reasoned that this evidence would tend to establish bias, prejudice, and motive on the part of the State’s witness, and thus, should have been admitted. Id. The court noted that:

The Court has frequently stated that great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive and animus upon the part of any witness testifying against him.

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The accuracy and truthfulness of [the witness’s] testimony was a key element in the State’s case against appellants. The claim of bias, interest and motive which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of [the witness’s] vulnerable status as an indict-ee, as well as [the witness’s] possible concern that he might be a suspect in the offense.

We conclude that appellants were denied the right of effective cross-examination, which is ‘constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it....’

Id. at 871-73. (Remaining citations omitted; emphasis added.)

In Steve v. State, 614 S.W.2d 137 (Tex.Crim.App.1981), the court held that in a case of indecency with a child, it was reversible error to exclude evidence showing that a child abuse investigation was pending against the mother of the complaining child at the time the charge was made against the accused. Id. at 140. The court stated:

The trial court sustained the state’s objection that this evidence was irrelevant. The motives which operate on the mind of a witness while he testifies should never be regarded as immaterial or irrelevant. McDonald v. State, 77 Tex.Cr.Rep. 612, 179 S.W. 880 (1915). Great latitude should be allowed the accused in showing any fact which would tend to establish ill feeling, bias, motive, or animus upon the part of any witness testifying against him. The jury should be given the opportunity to judge for themselves the witness’s credibility in light of the witness’s feeling toward the accused and his motive for testifying. ...

Id. (Emphasis added; citations omitted.)

The basis for the Texas Court of Criminal Appeals’ holdings is the decision of the Supreme Court of the United States in Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974). In Davis, Richard Green was a crucial witness for the State in establishing the guilt of the accused. Id. at 310, 94 S.Ct. at 1107. Pri- or to trial, the trial court granted the State a motion for a protective order to prevent any reference to Green’s juvenile record by the defense in cross-examination. Id. at 311, 94 S.Ct. at 1107. The juvenile offense had been committed over a year before the trial but Green was still on probation. Id. The trial court granted the protective order, relying on Alaska Rule of Children’s Procedure 23 and Alaska Stat. § 47.10.080(g) (1971), which protect juvenile records from disclosure. Id. The Supreme Court of the United States held it was reversible error, emphasizing that the Sixth Amendment guarantees significant cross-examination rights, which include exposure of a witness’ motivation in testifying. Id. , 94 S.Ct. at 1111. In reversing, the Supreme Court stated:

The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 (1965). Confrontation means more than being allowed to confront the witness physically. ‘Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.’ Douglas v. Alabama, 380 U.S. 415, 418, 13 L.Ed.2d 934, 85 S.Ct. 1074 (1965)....

* * * * * *

... A more particular attack on the witness’ credibility is effected by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore Evidence § 940, p. 775 (Chadboum rev. 1970). We have recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U.S. 474, 496, 3 L.Ed.2d 1377, 79 S.Ct. 1400 [1413] (1959).

In the instant case, defense counsel sought to show the existence of possible bias and prejudice of Green, causing him to make a faulty initial identification of petitioner, which in turn could have affected his later in-court identification of petitioner.

We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to fully present it. But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green’s testimony which provided ‘a crucial link in the proof ... of petitioner’s act.’ Douglas v. Alabama, 380 U.S. at 419 [85 S.Ct. at 1077] 13 L.Ed.2d 934. The accuracy and truthfulness of Green’s testimony were key elements in the State’s case against petitioner....

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... In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvenile record — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness....

As in Alford [v. U.S., 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed.2d 624 (1931)], we conclude that the State’s desire that Green fulfill his public duty to testify free from embarrassment with his reputation unblemished must fall before the right of petitioner to seek out the truth in the process of defending himself....

Id. 415 U.S. at 315-20, 94 S.Ct. at 1109-12.

The appellant aptly cites the case of Olden v. Kentucky, 488 U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988), in support of his contention that the trial court violated his Sixth Amendment right to cross-examine the complainant about her alleged subsequent consensual group sex activities. In Olden, a black accused was indicted for kidnapping, rape, and forcible sodomy of a white woman. Id. at 228, 109 S.Ct. at 4. The accused asserted that the acts were consensual, and that the complainant had lied in contending these acts were against her will for fear of jeopardizing her relationship with another black man, with whom she was living at the time of the trial. Id. at 229, 109 S.Ct. at 481. The accused attempted to cross-examine the complainant at trial about her currently living with her black boyfriend, for the purpose of showing a motive of the complainant to lie to protect her relationship. Id. at 230, 109 S.Ct. at 482. However, the trial court refused to permit the cross-examination of the complainant on the grounds that the probative value was outweighed by its possibility for prejudice because she was white and her boyfriend was black. Id.

The Supreme Court of the United States held that the accused was denied his Sixth Amendment right “to be confronted with the witnesses against him”. Id. at 231, 109 S.Ct. at 482; U.S. CONST. Amend. VI. The Court charged that although the trial court may “impose reasonable limitations”, the trial court placed a “limitation here beyond reason.” Id. at 232, 109 S.Ct. at 483. “Speculation as to the effect of jurors’ racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of [the complainant’s] testimony.” Id. The Court further stated:

In Davis v. Alaska, we observed that, subject to “the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation ..., the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” Id. at 316, 39 L.Ed.2d 347, 94 S.Ct. at 1105. We emphasized that “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Id., at 316-317, 39 L.Ed.2D 347, 94 S.Ct. [at] 1105, citing Greene v. McElroy, 360 U.S. 474, 496, 3 L.Ed.2d 1377, 79 S.Ct. 1400 [1413] (1959). Recently, in Delaware v. Van Arsdall, 475 U.S. 673, 89 L.Ed.2d 674, 106 S.Ct. 1431 (1986), we reaffirmed Davis, and held that “a criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.’ ” 475 U.S., at 680, 89 L.Ed.2d 674, 106 S.Ct. at 1431, quoting Davis, supra, [415 U.S.] at 318, 39 L.Ed.2d 347, 94 S.Ct. 1105 [1111].

Id. 488 U.S. at 231, 109 S.Ct. at 483.

As in Olden, the trial court here placed limitations on the appellant’s Sixth Amendment right of cross-examination that were “beyond reason” and unjustifiably excluded “cross-examination with such strong potential to demonstrate the falsity of [the complainant’s] testimony”. Id.

In Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Court found that the appellant had demonstrated “a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.’ ” Id. at 680, 106 S.Ct. at 1436. Likewise, in the present case, the excluded cross-examination, which was based on the evidence adduced in the bill of exceptions, had the potential to expose facts from which the jurors could have appropriately drawn inferences not only as to the consent of the complainant, but also as to a motive to lie to protect her alleged affliction. As the United States Supreme Court emphasized, “[w]e cannot speculate as to whether the jury ... would have accepted this line of reasoning had counsel been permitted to fully present it ... [b]ut ... the jurors were entitled to have the benefit of the defense theory before them so they could make an informed judgment_” Davis, 415 U.S. at 320, 94 S.Ct. at 1112.

One dissent would condone the deprivation of this appellant’s constitutional right of meaningful confrontation by merely concluding that Texas Rules of Criminal Evidence 404 and 405 do not justify the admission of the suppressed evidence; moreover, the dissent argues that the complainant’s character traits, as well as the complainant’s motive to falsely accuse, were not ‘elements’ of appellant’s defense.

Assuming, without agreeing, that Texas Rules of Criminal Evidence 404 and 405 do not justify the admission of the suppressed evidence, these rules of evidence must give way to the accused’s right of cross-examination just as the United States Supreme Court required the Alaska state statute protecting juvenile records to give way to the constitutional right of cross-examination of the accused in Davis. Davis, 415 U.S. at 310, 94 S.Ct. at 1107. Further, rule 404 permits “evidence of a pertinent trait of character of the victim of the crime offered by an accused,” and rule 405 provides that “[i]n cases in which character or trait of character of a person is an essential element of a ... defense, proof may also be made of specific instances of his conduct.” TEX.R.CRIM.EVID. 404(a)(2); TEX.R. CRIM.EVID. 405(b).

The dissent concludes that the character trait of the complainant sought to be established by the defense was not an element of the defense. What the defense sought to establish by the suppressed evidence was not just a character trait of the complainant, but an alleged medical affliction which had a direct connection with the defense of consent. At the commencement of the trial, the appellant made it clear that the only defense he would present was consent of the complainant. Certainly, the alleged affliction of the complainant which the appellant sought to show by the suppressed evidence had the tendency of creating a propensity, ofl someone so afflicted, of not only consenting to group sexual contacts, but of inducing them. Thus, the suppressed evidence would at least have the effect of casting serious doubts on the complainant’s allegations that she did not consent either to the alleged kidnapping or to the eventual alleged sexual assault.

Likewise, the motive of the complainant to falsely accuse and pursue the charge was critical to appellant’s only defense. Appellant’s constitutional right of meaningful cross-examination as to the complainant’s motive to falsely accuse was emphasized by the United States Supreme Court when they stated that they “recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis, 415 U.S. at 316, 94 S.Ct. at 1110. The Texas Court of Criminal Appeals’ likewise, stated that “[t]he jury should be given the opportunity to judge for themselves the witness’s credibility in light of the witness’s feeling toward the accused and his motive for testifying.” Steve, 614 S.W.2d at 140.

The appellant made it abundantly clear from the outset of the trial that in presenting his only defense of consent, he would rely on the suppressed evidence to show that the complainant had a motive to lie initially about her lack of consent to hide her sexual affliction from the public as well as from her jealous husband who, undoubtedly, would require that she explain her whereabouts all night upon returning home the following morning. The appellant further asserted that this same motive which caused the complainant to lie initially required her to continue to lie until the suppressed evidence was discovered by the appellant which resulted in her subsequent refusal to testify at the trial.

As such, the appellant was denied the right of meaningful confrontation, which is “constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Davis, 415 U.S. at 318, 94 S.Ct. at 1111. The appellant was prevented from presenting the only defense he had. Thus, this error alone requires that the case be reversed and remanded. However, this case also requires reversal because the motion for new trial should have been granted. The motion for new trial was based on allegations of jury misconduct. In Garza v. State, 630 S.W.2d 272 (Tex.Crim.App.1981) (op. on reh’g en banc), the Texas Court of Criminal Appeals clarified the rule as to jury misconduct:

As Rogers and Hunt make clear, V.A. C.C.P., Article 40.03(7) requires reversal when the evidence shows that “other evidence” was received by the jury during its deliberations and that “other evidence” was detrimental to the defendant. This Court simply will not inquire into whether or how the jury’s deliberations were affected by this “other evidence” when the two requirements of Article 40.03(7) have been met.

Id. at 276, citing, Hunt v. State, 603 S.W.2d 865 (Tex.Crim.App.1980), and Rogers v. State, 551 S.W.2d 369 (Tex.Crim.App.1977).

The trial court here was presented with sworn affidavits and testimony of jurors Armando Garza and Angel Galvan. Garza testified that while the jury was in the jury room and within the hearing of all the jurors, one of the jurors told the jury that the appellant was on parole, that he had escaped from jail, had probably had sex with his wife, and had gotten his wife pregnant. Garza further stated that a different juror also made the statement in the jury room that the appellant had another charge of rape against him and that these comments had bothered him and crossed his mind during the guilt/innocence and punishment deliberations. Although the testimony is unclear, at one point Garza testified that the statements were made before the guilty verdict had been reached. Galvan further stated that he also recalled several jurors saying that if they gave the appellant thirty (30) years he would only serve twenty (20) or fifteen (15) years, which he objected to because it was too much punishment for appellant to serve “for nothing.” It is uncontradicted that this “other evidence” was not introduced or received into evidence during the trial. Certainly, this is “other evidence” “received by the jury during its deliberation” which “was detrimental to the defendant” and which “requires reversal.” Garza, 630 S.W.2d at 276.

It is also uncontradicted that the jury was permitted to take into the jury room State’s Exhibit 1, which was not introduced during the trial and was the complainant’s affidavit that she did not wish to prosecute due to media harassment. Although it appears that the occurrence was a result of an oversight rather than due to any intentional act, the result was the same; the jury received “other evidence” not introduced during trial which the appellant was unable to object to or impeach. Considering the fact that the appellant consistently contended that the complainant did not want to prosecute because the defense had discovered her alleged sexual affliction rather than because of media harassment, the proper introduction of this affidavit during trial would have provided the defense with still another valid reason to introduce the excluded evidence for the purpose of impeaching the statements in the affidavit. In Burkhalter v. State, 493 S.W.2d 214 (Tex.Crim.App.1973), the court emphasized the value of the right to impeach a critical witness stating:

The point is that the jury should have been given the opportunity to judge [the state’s critical witness’s] credibility for themselves_ (Emphasis in original.)

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As recognized in Napue, the jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence. (Emphasis added.)

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As previously stated, [because the witness was critical to establish an element of the state’s case] it is of no consequence that the falsehood bore upon the witness’ credibility rather than directly upon appellant’s guilt. (Emphasis added.)

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Due process, perhaps the most fundamental concept in our law, embodies principles of fairness rather than an immutable line drawing as to every aspect of a criminal trial....

Id. at 218-219 (citations omitted), citing, Napue v. Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).

In a case such as this, the complainant is the most critical witness for the State, and the most critical issue is consent which depends entirely upon the credibility of the complainant. This case involves a complainant testifying under a court threat of contempt, who, allegedly, had the afflictions described by the evidence in the bill of exceptions, which remained unknown to the jury. Further, the State depended considerably for substantiation on the testimony of an adult witness who admitted drinking two cases of beer prior to the incident, which, he admitted, affected his ability to determine what was real and what was not, and who described his mental condition as one where his “chain jumped.”

The State also relied on the testimony of a twelve (12) year old who was on probation on the night in question; a fact which the court prevented the appellant from using in cross-examination, but which is not a point of error before this court. Nevertheless, this is hardly a case that the State can claim is “overwhelming.” Considering all the foregoing, this “other evidence” improperly received by the jury added “detrimentally to the defense.” Garza, 630 S.W.2d at 276. The dissent rejects appellant’s complaint, surmising that the prejudicial remarks of the jury were mere jokes. We are unconvinced that this makes the “other evidence” improperly received less improper, or less “detrimental to the defense.” Garza, 630 S.W.2d at 276. Further, we cannot conclude beyond a reasonable doubt that the error made no contribution to the conviction. TEX.R.APP.P. 81(b)(2). Because this case must be reversed and remanded, we find no need to address the other points of error.

A trial is a search for the truth. Although an accused is not entitled to a perfect trial, he is entitled to a fair one. This appellant may be guilty as charged, but he was assured, by both the United States and Texas Constitutions, a right to effectively present his sole defense through relevant and admissible evidence and by meaningful confrontation. Further, in order to have a fair trial, the jury should have rendered its verdict based solely on the evidence properly admitted during trial, without considering other detrimental evidence which was not properly introduced. The Supreme Court of the United States addressed this issue more eloquently in Brady, stating that “Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly.” Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

The judgment is reversed and the cause is remanded.