COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-207-CR
ERIC
PAUL MICHAEL APPELLANT
V.
THE
STATE OF TEXAS STATE
------------
FROM
THE 371ST DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1
I. Introduction
Appellant,
Eric Paul Michael (“Michael”), appeals from his convictions for aggravated
sexual assault and indecency with a child. In his sole point on appeal,
Michael contends that the trial court abused its discretion when it allowed the
State to bolster the credibility of its essential witness. We affirm.
II. Background Facts and Procedural History
At
the time of the alleged incident, the complainant, H.R., was spending the night
in Michael’s home as a guest of his two daughters. H.R. and Michael’s two
daughters slept in a small guestroom on a pallet of sleeping bags. H.R.
testified that she awoke at 1:00 a.m. to find Michael kneeling beside her and
“touching himself.” She testified that he was not wearing a shirt and
that his shorts were pulled down. She indicated that she had been sleeping
on her right side but that Michael had rolled her over onto her back. She
stated that he then moved to her feet, pulled down her shorts, and began licking
her “vagina” [sic]. She testified that after five or ten minutes he
stopped, pulled up her shorts, said “thank-you,” and left the room.
H.R.
did not tell anyone of this incident until several months later, when after
watching an episode of “The Practice” she told her mother. The next
day, H.R.’s mother called Child Protective Services and took her daughter to
the Grapevine police department where they filed a report. H.R. then gave
a videotaped interview. During cross-examination of H.R., Michael’s
defense counsel brought out discrepancies between H.R.’s testimony at trial
and the videotaped interview. In rebuttal, the State called H.R.’s
former second grade teacher to offer testimony as to H.R.’s character for
truthfulness. Michael’s defense counsel objected to this testimony on
the grounds that H.R.’s character or credibility had not been attacked and
that any testimony regarding her character for truthfulness would be improper
“bolstering.” The trial court overruled the objection and allowed the
testimony of H.R.’s second grade teacher.
III. Evidence of Truthful Character
In
his sole point on appeal, Michael argues that the trial court abused its
discretion by allowing the State to bolster H.R.’s credibility through opinion
testimony that H.R. had good character for truth when H.R.’s credibility had
not been attacked through opinion testimony or otherwise. The State
responds that the testimony regarding H.R.’s good character for truthfulness
was admissible because it was relevant and because Michael had attacked her
character for truthfulness within the meaning of Texas Rule of Evidence
608(a)(2). See Tex. R. Evid.
608(a)(2).
A. Standard of Review
We
review the trial court's decision to admit or exclude evidence under an abuse of
discretion standard. Burden v. State, 55 S.W.3d 608, 615 (Tex.
Crim. App. 2001); Green v. State, 934 S.W.2d 92, 101-02 (Tex. Crim. App.
1996), cert. denied, 520 U.S. 1200 (1997); Montgomery v. State,
810 S.W.2d 372, 379-80 (Tex. Crim. App. 1990). The test for abuse of
discretion is not whether, in the opinion of the reviewing court, the facts
present an appropriate case for the trial court's action; rather, it is a
question of whether the court acted without reference to any guiding rules or
principles, and the mere fact that a trial court may decide a matter within its
discretionary authority differently than an appellate court does not demonstrate
such an abuse. Montgomery, 810 S.W.2d at 391. We will not
reverse a trial courts ruling on the admission of evidence as long as the ruling
is within the zone of reasonable disagreement. Id.
B. Analysis
Rule
608(a) of the Texas Rules of Evidence provides for the impeachment and
rehabilitation of a witness’s credibility. Rule 608(a) provides that:
The credibility of a witness may be attacked or supported by evidence in the
form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness,
and
(2)
evidence of truthful character is admissible only after the character of
the witness for truthfulness has been attacked by opinion or reputation evidence
or otherwise.
Tex. R. Evid. 608(a) (emphasis added).
During
direct examination, H.R. testified that Michael had rolled her over onto her
back and that she had been lying on her right side prior to the incident.
During cross-examination of H.R., Michael’s defense counsel brought out
discrepancies between H.R.’s testimony at trial and her videotaped interview.
In particular, it was brought out on cross-examination that contrary to her
direct testimony, H.R. stated in her videotaped interview that she was lying on
her left side during the entire ordeal and that she did not say anything in her
videotaped interview about being rolled over.
The
State points to the following part of H.R.’s cross-examination as supporting
its position that H.R’s character for truthfulness was attacked by Michael:
[Defense Counsel]: Okay. Do you remember after you told your mom that you
went and spoke with a lady about what had happened to you?
[H.R.]:
Yes, ma’am.
[Defense
Counsel] Okay. And do you remember her telling you before you started
talking about this that there was a camera in the room?
[H.R.]
Yes, ma’am.
[Defense
Counsel]: Okay. And she told you that she was taping–
[H.R.]:
Yes.
[Defense
Counsel]: – the interview, right?
[Defense
Counsel]: Okay. And do you remember her talking about how important it was to
tell the truth?
[Defense
Counsel]: And, in fact, she even asked you about – she even gave examples?
[Defense
Counsel]: Okay. What – what would be a truth and what would be a lie?
*
* *
[Defense
Counsel]: Do you remember what you told her?
[H.R.]:
Yes ma’am.
[Defense
Counsel]: Okay. When you were talking to her, did you tell her that you were
laying on your left side and that [A.M.] and [J.M.] were on either side of you?2
[Defense
Counsel]: Okay. In fact, she had some little dolls, —
[Defense
Counsel]: – right? She had a female doll and a male doll?
[Defense
Counsel]: Okay. And she gave you the female doll and asked you to show her how
you were laying?
[Defense
Counsel]: And you laid the doll on your left – on its left side?
[Defense
Counsel]: Okay. And you – you never said anything to her about being rolled
over or anything else, did you?3
[H.R.]:
I don’t think so, no.
[Defense
Counsel]: And y’all’s feet were down toward the –
[H.R.]:
TV.
[Defense
Counsel]: TV hutch. Okay. And do you recall telling the – the – the lady
that you spoke with that you – you had – you never moved off your left side?
[Defense
Counsel]: Okay. And now, were you – were you on your side when all this was
going on?
[H.R.]:
I think he had rolled me onto my back.
[Defense
Counsel]: Okay. But you didn’t say that when you were talking to the lady?
[H.R.]:
Right.
[Defense
Counsel]: Okay. In fact, the lady asked you that question a couple of times,
right?
[H.R.]:
I think so.
[Defense
Counsel]: Okay. And all – and every time you told her that, you stayed on your
left side?
[H.R.]:
Okay. Yes, ma’am.
[Defense
Counsel]: Okay. Now, when you’re describing everything that has occurred to
you, do you remember – when you talked to the – the investigator who did the
tape –
[Defense
Counsel]: – the lady there at CPS, okay, do you recall her asking you what Mr.
Michael’s penis looked like?
[Defense
Counsel]: Okay. Do you remember what you told her?
[Defense
Counsel]: Okay. What was that?
[H.R.]:
I just told her it was sticking out like – she asked me if it was sticking up
or down or anything like that. I just told her it was sticking out.
[Defense
Counsel]: Okay. She asked you two questions. The first question was what it
looked like. Do you recall telling her it looked normal?
[Defense
Counsel]: Okay. Are you sure that you told her that it was sticking out?
[H.R.]:
I think I told her it was sticking down.
[Defense
Counsel]: That it was hanging down?
[Defense
Counsel]: Okay. So your statement a minute ago that it was sticking out was
incorrect?
[Defense
Counsel]: Okay. And she asked you – do you remember her asking you the
question about, well, how did this happen if your legs were here or here? Do you
recall that?
[Defense
Counsel]: Okay. And do you recall telling her that you – you weren’t sure
–
[Defense
Counsel]: – how that happened?
[Defense
Counsel]: Because of the position that you were in?
[Defense
Counsel]: Okay. And you weren’t sure?
[Defense
Counsel]: Okay. And – and you again stated that you still didn’t see how he
could have done what he did because the room was so small?
[Defense
Counsel]: And you were on your left side?
The
State argues the Michael’s cross-examination of H.R. by use of prior
inconsistent statements aimed at impeaching her testimony amounted to an attack
on H.R.’s character for truthfulness under the “otherwise” provision of
Rule 608(a)(2), opening the door for rebuttal evidence as to H.R.’s character
for truthfulness. Michael, on the other hand, argues that his questioning of
H.R. was nothing more than a thorough cross-examination, not an attack on
H.R.’s character for truthfulness. We agree with the State.
Rule
608(a) conditions the admissibility of evidence of a witness’s good character
for truthfulness to situations where the character of the witness for
truthfulness has been attacked. Tex. R.
Evid. 608(a); see Moore v. State, 143 S.W.3d 305, 324-35 (Tex.
App.—Waco 2004, pet. ref’d) (Gray, C.J., concurring and dissenting) (stating
that to be “admissible to rehabilitate an impeached witness’s credibility,
the method of impeachment must have attacked the witness’s character
for truthfulness, not just the witness’s testimony”).
Evidence
of a witness’s character for truthfulness is not admissible simply because
evidence has been admitted conflicting with the witness’s testimony. See
Wallace v. State, 501 S.W.2d 883, 886 (Tex. Crim. App. 1973). Nor is
evidence of a witness’s character for truthfulness admissible simply because
the witness has been subjected to a vigorous cross-examination. Moore,
143 S.W.3d at 315. However, Texas courts have historically treated the
impeachment of a witness by prior inconsistent statements as an attack on the
witness’s veracity character permitting evidence of good character for truth
and veracity in rebuttal. See O’Bryan v. State, 591 S.W.2d 464,
476 (Tex. Crim. App. 1979) (quoting 1 McCormick
and Ray, Texas Law of Evidence § 772 (2d ed. 1956)). Thus, where a
witness is placed in the position of testifying differently from that which she
previously testified, i.e., where the witness is impeached by prior inconsistent
statements, evidence of a witness’s veracity character is admissible in
rebuttal. See Duckett v. State, 797 S.W.2d 906, 918 (Tex. Crim.
App. 1990), overruled on other grounds, Cohn v. State, 849 S.W.2d 817,
819 (Tex. Crim. App. 1993); O’Bryan, 591 S.W.2d at 476; Adams v.
State, 514 S.W.2d 262, 264 (Tex. Crim. App. 1974) (citing Acker v. State,
421 S.W.2d 398, 401 (Tex. Crim. App. 1967)); see also Foggle v. State,
632 S.W.2d 402, 405 (Tex. App.—Forth Worth, no pet.) (citing Wallace v.
State, 501 S.W.2d 883, 886 (Tex. Crim. App. 1993) (indicating that unless
the State attempts to prove a defendant’s good or bad reputation for veracity,
or shows contradictory statements of the defendant, defendant may
not prove his reputation for truth or veracity)).
Here,
H.R. was placed in a position of having testified differently than her previous
statements in the videotaped interview. This discrepancy is material
because in her videotaped interview H.R. admitted that she could not explain how
the alleged incident could have happened while she was lying on her left side.
Further, just prior to confronting H.R. with her prior inconsistent statements,
Michael’s defense counsel asked H.R. if she remembered the interviewer
discussing with her the importance of telling the truth and providing examples
of what would be the truth and what would be a lie. Thus, after reviewing
the testimony, we cannot say that the trial court abused its discretion in
allowing the objected-to testimony regarding H.R.’s character for truthfulness
because the trial court could have reasonably determined that Michael’s
cross-examination of H.R. was an attack on her character for truthfulness,
opening the door to rehabilitative character testimony pursuant to Rule
608(a). We overrule Michael’s sole point.
IV. Conclusion
Having
overruled Michael’s sole issue, we affirm the trial court’s judgment.
BOB
MCCOY
JUSTICE
PANEL
B: HOLMAN, GARDNER, and MCCOY, JJ.
PUBLISH
DELIVERED:
July 14, 2005
NOTES
1.
See Tex. R. App. P. 47.4.
2.
H.R. testified during direct examination that she had been sleeping on her right
side.
3.
H.R. testified during direct examination that Michael had rolled her over.