In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00285-CR
DUSTY LEE WINKLER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 396th District Court Tarrant County, Texas1 Trial Court No. 1614611D, Honorable Robert P. Brotherton, Presiding
April 2, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Appellant, Dusty Lee Winkler, appeals his conviction for continuous sexual abuse
of a child2 and sentence to forty years’ confinement. We affirm the judgment as reformed.
1 Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by
the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. 2 See TEX. PENAL CODE ANN. § 21.02. BACKGROUND
At trial, the State offered evidence that from 2017 through 2019, when J.M. 3 was
under the age of fourteen, Appellant sexually abused her on multiple occasions. 4 First,
J.M.’s father testified as an outcry witness. He related that on September 11, 2019, J.M.’s
mother received a call from J.M.’s school notifying her that J.M. had a challenging day at
school and was somewhat emotional. When J.M. arrived at home, her parents asked her
why she was upset. After further questioning by her father, J.M. eventually revealed
“three to four” sexual incidents with Appellant. J.M.’s father discussed the matter with
J.M.’s mother, then called the Arlington Police Department. J.M., who was sixteen at the
time of trial, testified next. She relayed that, among other things, Appellant touched her
vagina, made her touch his penis, performed oral sex on her, caused her to perform oral
sex on him, and put his penis inside her vagina.
Before the completion of J.M.’s testimony, the trial court held a hearing outside the
presence of the jury in compliance with Texas Rule of Evidence 412(c) to determine
whether evidence of other sexual activity by J.M. was admissible. Appellant submitted
an offer of proof showing his proposed cross-examination of J.M. indicating that J.M. told
a Child Protective Services investigator about her sexual misconduct involving her
younger brothers, and that she felt ashamed of her conduct. J.M. further testified that
she was scared that she would be charged with an offense or taken away from her family
3 To protect the complainant’s identity, we refer to her as “J.M.”See TEX. CONST. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 4 At that time, Appellant was married to J.M.’s aunt. The couple, along with their young daughter, lived with J.M.’s family.
2 because of the situation with her brothers. J.M. also revealed her misconduct with her
brothers to her father, testifying that she told him “everything about what had happened
in the past, while all this was happening.”5
Appellant’s counsel sought to introduce the evidence under Texas Rule of
Evidence 412(b)(2)(C) to demonstrate J.M.’s bias and motive for fabricating the
allegations against Appellant, arguing, “She was scared to death. She made a false
outcry against this Defendant because of the crime – or the offenses . . . She is mentally
stressed about getting convicted as a sexual offender and such. This all goes into any
accusation.” He further asserted that an accused has “the right to cross-examine fully.”
The State responded that the evidence was irrelevant and that any probative value it had
was far outweighed by its prejudicial effect. The trial court determined that the prejudicial
nature of the evidence outweighed its probative value and ruled that the evidence would
not be admitted before the jury.
The jury then heard testimony from several other witnesses, including Appellant
himself. At the conclusion of the evidence, the jury found Appellant guilty of continuous
sexual abuse of a child. The trial court sentenced him to forty years’ confinement.
Appellant filed this appeal challenging the trial court’s exclusion of evidence.
STANDARD OF REVIEW
A trial court has considerable discretion in determining whether to exclude or admit
evidence. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We
5 By “while all this was happening,” J.M. appears to be referring to her outcry on September 11.
3 review a trial court’s ruling on Rule 412 evidence for an abuse of discretion. Johnson v.
State, 490 S.W.3d 895, 908, 913 (Tex. Crim. App. 2016). An abuse of discretion occurs
when the decision falls outside the zone of reasonable disagreement. Id. at 908. We will
uphold the trial court’s evidentiary ruling if it is correct under any applicable theory of law.
Id.
ANALYSIS
Appellant asserts that J.M. fabricated a story of sexual abuse by Appellant to avoid
trouble for her past sexual activity with her brothers. In his sole issue on appeal, he claims
that the trial court, in violation of the Rules of Evidence and the Confrontation Clause,
abused its discretion by excluding J.M.’s testimony regarding her conduct because the
evidence relates to J.M.’s motive or bias. See TEX. R. EVID. 412(b)(2)(C).
Texas Rule of Evidence 412
Texas Rule of Evidence 412 prohibits evidence of specific instances of a victim’s
past sexual behavior unless it falls within one of five exceptions. See TEX. R. EVID.
412(b)(2)(A–E). But even if the evidence is admissible under one of the 412(b)
exceptions, it nonetheless may be excluded if its probative value fails to outweigh the
danger of unfair prejudice. See TEX. R. EVID. 412(b)(3); Montgomery v. State, 415 S.W.3d
580, 583 (Tex. App.—Amarillo 2013, pet. ref’d). Moreover, “[u]nder Rule 412(b)(3) the
burden falls on the proponent of the evidence, the defendant, to show that the probative
value of the evidence outweighs the unfair prejudice.” Stephens v. State, 978 S.W.2d
728, 733 (Tex. App.—Austin 1998, pet. ref’d). Unlike the general balancing test under
4 Rule 403, which weighs in favor of the admissibility of evidence, Rule 412(b)(3) weighs
against the admissibility of evidence. Id.
Here, J.M.’s testimony in the 412 hearing does not indicate that she had confessed
to or been investigated for the conduct involving her brothers prior to her outcry against
Appellant. Although Appellant suggests that J.M.’s fears of facing consequences for her
acts motivated her to make a false outcry against him, the evidence does not establish
that J.M. had been confronted about her behavior at the time she made an outcry against
Appellant. The timing of J.M.’s outcry therefore distinguishes this case from Johnson and
Hill, the cases relied upon by Appellant. In Johnson, the evidence reflected the following
sequence of events: the complainant sexually molested his sister, his parents knew of his
misconduct and placed him in counseling as a result, and complainant later made an
outcry against Johnson. Johnson, 490 S.W.3d at 911–13. There, the Court of Criminal
Appeals held that the evidence of the complainant’s past abuse of his sister was “relevant
to Johnson’s defense that [the complainant] had a motive to fabricate the accusations so
that he would appear sympathetic to his parents as a victim of sexual assault, rather than
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In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-22-00285-CR
DUSTY LEE WINKLER, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 396th District Court Tarrant County, Texas1 Trial Court No. 1614611D, Honorable Robert P. Brotherton, Presiding
April 2, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Appellant, Dusty Lee Winkler, appeals his conviction for continuous sexual abuse
of a child2 and sentence to forty years’ confinement. We affirm the judgment as reformed.
1 Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by
the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. 2 See TEX. PENAL CODE ANN. § 21.02. BACKGROUND
At trial, the State offered evidence that from 2017 through 2019, when J.M. 3 was
under the age of fourteen, Appellant sexually abused her on multiple occasions. 4 First,
J.M.’s father testified as an outcry witness. He related that on September 11, 2019, J.M.’s
mother received a call from J.M.’s school notifying her that J.M. had a challenging day at
school and was somewhat emotional. When J.M. arrived at home, her parents asked her
why she was upset. After further questioning by her father, J.M. eventually revealed
“three to four” sexual incidents with Appellant. J.M.’s father discussed the matter with
J.M.’s mother, then called the Arlington Police Department. J.M., who was sixteen at the
time of trial, testified next. She relayed that, among other things, Appellant touched her
vagina, made her touch his penis, performed oral sex on her, caused her to perform oral
sex on him, and put his penis inside her vagina.
Before the completion of J.M.’s testimony, the trial court held a hearing outside the
presence of the jury in compliance with Texas Rule of Evidence 412(c) to determine
whether evidence of other sexual activity by J.M. was admissible. Appellant submitted
an offer of proof showing his proposed cross-examination of J.M. indicating that J.M. told
a Child Protective Services investigator about her sexual misconduct involving her
younger brothers, and that she felt ashamed of her conduct. J.M. further testified that
she was scared that she would be charged with an offense or taken away from her family
3 To protect the complainant’s identity, we refer to her as “J.M.”See TEX. CONST. art. I, § 30(a)(1) (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process”). 4 At that time, Appellant was married to J.M.’s aunt. The couple, along with their young daughter, lived with J.M.’s family.
2 because of the situation with her brothers. J.M. also revealed her misconduct with her
brothers to her father, testifying that she told him “everything about what had happened
in the past, while all this was happening.”5
Appellant’s counsel sought to introduce the evidence under Texas Rule of
Evidence 412(b)(2)(C) to demonstrate J.M.’s bias and motive for fabricating the
allegations against Appellant, arguing, “She was scared to death. She made a false
outcry against this Defendant because of the crime – or the offenses . . . She is mentally
stressed about getting convicted as a sexual offender and such. This all goes into any
accusation.” He further asserted that an accused has “the right to cross-examine fully.”
The State responded that the evidence was irrelevant and that any probative value it had
was far outweighed by its prejudicial effect. The trial court determined that the prejudicial
nature of the evidence outweighed its probative value and ruled that the evidence would
not be admitted before the jury.
The jury then heard testimony from several other witnesses, including Appellant
himself. At the conclusion of the evidence, the jury found Appellant guilty of continuous
sexual abuse of a child. The trial court sentenced him to forty years’ confinement.
Appellant filed this appeal challenging the trial court’s exclusion of evidence.
STANDARD OF REVIEW
A trial court has considerable discretion in determining whether to exclude or admit
evidence. See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990). We
5 By “while all this was happening,” J.M. appears to be referring to her outcry on September 11.
3 review a trial court’s ruling on Rule 412 evidence for an abuse of discretion. Johnson v.
State, 490 S.W.3d 895, 908, 913 (Tex. Crim. App. 2016). An abuse of discretion occurs
when the decision falls outside the zone of reasonable disagreement. Id. at 908. We will
uphold the trial court’s evidentiary ruling if it is correct under any applicable theory of law.
Id.
ANALYSIS
Appellant asserts that J.M. fabricated a story of sexual abuse by Appellant to avoid
trouble for her past sexual activity with her brothers. In his sole issue on appeal, he claims
that the trial court, in violation of the Rules of Evidence and the Confrontation Clause,
abused its discretion by excluding J.M.’s testimony regarding her conduct because the
evidence relates to J.M.’s motive or bias. See TEX. R. EVID. 412(b)(2)(C).
Texas Rule of Evidence 412
Texas Rule of Evidence 412 prohibits evidence of specific instances of a victim’s
past sexual behavior unless it falls within one of five exceptions. See TEX. R. EVID.
412(b)(2)(A–E). But even if the evidence is admissible under one of the 412(b)
exceptions, it nonetheless may be excluded if its probative value fails to outweigh the
danger of unfair prejudice. See TEX. R. EVID. 412(b)(3); Montgomery v. State, 415 S.W.3d
580, 583 (Tex. App.—Amarillo 2013, pet. ref’d). Moreover, “[u]nder Rule 412(b)(3) the
burden falls on the proponent of the evidence, the defendant, to show that the probative
value of the evidence outweighs the unfair prejudice.” Stephens v. State, 978 S.W.2d
728, 733 (Tex. App.—Austin 1998, pet. ref’d). Unlike the general balancing test under
4 Rule 403, which weighs in favor of the admissibility of evidence, Rule 412(b)(3) weighs
against the admissibility of evidence. Id.
Here, J.M.’s testimony in the 412 hearing does not indicate that she had confessed
to or been investigated for the conduct involving her brothers prior to her outcry against
Appellant. Although Appellant suggests that J.M.’s fears of facing consequences for her
acts motivated her to make a false outcry against him, the evidence does not establish
that J.M. had been confronted about her behavior at the time she made an outcry against
Appellant. The timing of J.M.’s outcry therefore distinguishes this case from Johnson and
Hill, the cases relied upon by Appellant. In Johnson, the evidence reflected the following
sequence of events: the complainant sexually molested his sister, his parents knew of his
misconduct and placed him in counseling as a result, and complainant later made an
outcry against Johnson. Johnson, 490 S.W.3d at 911–13. There, the Court of Criminal
Appeals held that the evidence of the complainant’s past abuse of his sister was “relevant
to Johnson’s defense that [the complainant] had a motive to fabricate the accusations so
that he would appear sympathetic to his parents as a victim of sexual assault, rather than
as a perpetrator of sexual assault” and therefore should have been admitted. Id. at 914.
Similarly, in Hill, the Second Court of Appeals determined the trial court erred in excluding
evidence that the complainants were in trouble with their parents, and one had been
suspended from school for sexual misbehavior, before they made their outcries against
their father. Hill v. State, No. 02-16-00106-CR, 2017 Tex. App. LEXIS 4357, at *23 (Tex.
App.—Fort Worth May 11, 2017, pet. ref’d) (mem. op., not designated for publication).
In the instant case, J.M.’s testimony indicates that she first revealed Appellant’s
sexual abuse and then self-reported her own misconduct. The trial court could have 5 reasonably concluded that Appellant’s theory that J.M. fabricated her allegations against
him to protect herself from the consequences of her actions, which were unknown to
others at the time of her outcry, was so tenuous that it was easily outweighed by the
danger of unfair prejudice. See TEX. R. EVID. 412(b)(3). Moreover, Appellant did not
challenge the trial court’s determination that the evidence was unfairly prejudicial.
Accordingly, we cannot conclude that the trial court abused its discretion by excluding the
complained-of evidence.
Confrontation Clause
Appellant also argues that because the evidence was excluded, he was denied his
constitutional right to confront his accuser. See U.S. CONST. amend. VI; Hammer v. State,
296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (Sixth Amendment grants defendants in
criminal prosecutions right to confront witnesses against them, which includes right to
cross-examine witnesses to show possible bias, self-interest, or motive in testifying). We
disagree. The right to confront and cross-examine witnesses is not absolute and may
bow to accommodate other legitimate interests in the criminal trial process. Allen v. State,
700 S.W.2d 924, 931 (Tex. Crim. App. 1985) (holding that precursor to Rule 412 was
constitutional and did not, on its face, violate accused’s right to confrontation); see also
Johnson, 490 S.W.3d at 909 (trial court may put limits on defendant’s right to cross-
examine complainant).
It was Appellant’s burden to establish that the Confrontation Clause required the
admission of evidence related to J.M.’s prior sexual activity and that the evidence was
more probative than unfairly prejudicial. See White v. State, 549 S.W.3d 146, 151–52
6 (Tex. Crim. App. 2018) (proponent of challenged evidence generally has burden of
establishing admissibility). Where, as here, the trial court could have reasonably
concluded that the evidence had little probative value, and Appellant failed to establish
that whatever probative value existed outweighed the danger of unfair prejudice, we find
no abuse of discretion in the trial court’s exclusion of the evidence. Accordingly, we
overrule Appellant’s sole issue on appeal.
REFORMATION OF JUDGMENT
This Court has the authority to reform the trial court’s judgment to correct a clerical
error. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex. Crim. App.
1993) (en banc). Here, the record unambiguously shows that Appellant was convicted
by a jury and sentenced by the trial court. Therefore, we reform the judgment in Count
One to delete the heading reading “Judgment of Conviction by Court—Waiver of Jury
Trial” and to make its heading read “Judgment of Conviction by Jury.” See Abor v. State,
677 S.W.2d 560, 562 n.5 (Tex. App.—Eastland 1984, pet. ref’d). Otherwise, we affirm
the trial court’s judgment as reformed.
CONCLUSION
For the reasons set forth above, we affirm the trial court’s judgment as reformed.
Judy C. Parker Justice
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