Farra, Robert Leslie v. State

• Court: Court of Appeals of Texas
• Decided: September 19, 2002
• Docket: 01-00-01335-CR
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-00-01335-CR

ROBERT LESLIE FARRA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 230th District Court

Harris County, Texas

Trial Court Cause No. 847340

O P I N I O N

A jury found appellant guilty of aggravated sexual assault of a child and assessed punishment at seven years confinement, probated for seven years, and a fine of $10,000. We affirm.

Background

The complainant, age 12, lived with her father and her brother, age 17. Appellant, age 80, lived next door. Appellant befriended the complainant by giving her money, gifts, and clothes, such as nightgowns, swimsuits, bras, and panties. He invited her to his house, where she put on the clothes and he took photographs of her. He also gave her several sex books, which she hid in her room. On two occasions, appellant had the complainant sit on him while he was naked and she wore a nightgown. During one of those occasions, he put his penis in her mouth.

The next day, appellant invited the complainant's father to his house. He told the father that the complainant had confided in appellant about the following: (1) her brother had raped her years ago; and (2) her brother had stolen $150 that appellant had given her. The father went home, asked the brother about the missing money, and searched the complainant's room. The complainant retrieved the sex books and told her father that appellant had given them to her. After she explained what appellant had done to her, her father called the police.

The complainant went to the Children's Assessment Center, where she was interviewed and examined. She told the interviewer that appellant had a mole on his buttock and described other marks and scars on his body, which were not visible when appellant was clothed. Officers arrested appellant, searched his home pursuant to a warrant, and found several photographs of the complainant in nightgowns, swimsuits, bras, and panties. Officers confirmed the mole and scars on appellant's body. At trial, appellant denied sexually abusing the complainant, but admitted that he took the pictures of her, asked her to pose nude, and gave her the sex books.

Right to Confrontation

In his sole point of error, appellant contends that the trial court violated his right to confrontation under the Sixth Amendment to the United States Constitution. U.S. Const. amend. VI. Appellant attempted to elicit testimony during cross-examination of the complainant about whether her father had beaten her a few months prior to her outcry against appellant. Appellant contends that the trial court's refusal to allow this questioning violated his Sixth Amendment right to confrontation because it denied the admission of evidence regarding the complainant's motive to fabricate the allegations against appellant.

During cross-examination of the complainant, defense counsel asked if her father had beaten her in the past. The trial court sustained the State's objection based on relevance. Outside the presence of the jury, defense counsel explained that he wished to question the complainant about the following facts: (1) the complainant confided in appellant that her brother raped her years ago, and she never told her father; (2) she also confided in appellant about the missing money; (3) appellant betrayed her trust by telling her father about these incidents; and (4) a few months prior to her outcry, her father had beaten her to the point that she reported the beating to the Children's Protective Services (CPS). Defense counsel reasoned that, because the complainant was so afraid of her father and brother, she blamed appellant to divert her father's attention on appellant, instead of herself. Defense counsel explained:

Defense Counsel: That she was so upset and so fearful of her father when he confronted her with the missing money, but the major huge issue of her being molested by his son, that she was so afraid of him. I'm running through my whole theory of the case, that she would do anything to try to divert attention away from her and she made herself a victim, everything was off of her now and now everything is on [appellant]. She went from being afraid she was going to be beaten over all of this to go to bed, everything is okay. You're the victim.

Prosecutor: I hardly see how that makes it a motive. She was a victim no matter which way you look at it. She was always the victim. . . .

Defense Counsel: Judge, my position is that realistically she thought she was about to be a victim. Her daddy just beat her two to three months previous to this, left bruises on her legs. And she, I'm sure she was terrified. She brought up on direct in a nonresponsive question how scared she was of her father, he was so upset. She admitted to me he was very upset and we haven't brought up the real reason behind it. . . What about the reason she's fearful of her dad?

The Court: She testified she is fearful. I'm not going to listen, I'm not going to allow any testimony about how he disciplined her or exceeded discipline, whatever. . . . The purpose that you articulate as to why she would say [appellant] sexually assaulted her goes to a motive against [appellant], not any motive that may or may not be there as far as her father is concerned, so the Court is not going to allow at this time any testimony about any beating as described by defense counsel that occurred prior to these allegations.

The trial court ruled that appellant could ask the complainant about her brother's raping her years ago, if it was the defensive theory that she made the allegations against appellant because appellant betrayed her confidences. It further ruled that the complainant could testify that she was afraid of her father, but appellant could not question her about the prior beating by her father because it relates to a "motive that may or may not be there as far as her father is concerned," not to a motive against appellant. On appeal, appellant argues that the trial court's ruling violated his right of confrontation by not allowing evidence of the complainant's motive to make the sexual assault allegations against appellant.

The Sixth Amendment protects a defendant's right to confront and cross-examine witnesses against him. Davis v. Alaska, 415 U.S. 308, 315-16 94 S. Ct. 1105, 1110 (1974). This right is violated when appropriate cross-examination is limited. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). Appropriate cross-examination includes all avenues reasonably calculated to expose a motive, bias, or interest for the witness to testify. Id.

The accused is afforded great latitude in showing witness bias or motive to falsify testimony. Knox v. State, 31 S.W.3d 700, 702 (Tex. App.--Houston [1st Dist.] 2000, no pet.). However, the trial court retains wide latitude to impose reasonable limits on cross-examination. Carroll, 916 S.W.2d at 496-97. A trial court may permissibly limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive, or marginally relevant interrogation. Id. at 498. The trial court's decision to limit cross-examination is not subject to reversal absent a clear abuse of discretion. Love v. State, 861 S.W.2d 899, 903 (Tex. Crim. App. 1993).

Appellant sought to admit the disputed testimony about the complainant's father recently beating her because it would assist the jury's assessment of the complainant's credibility. Specifically, appellant contends that the complainant may have fabricated the allegations against appellant to divert the attention away from herself because she was afraid of her father.

The trial court allowed the admission of the complainant's testimony that she was afraid of her father, that he had a "hot temper," and that she was afraid of him on the night he came into her room to look for the missing money. Thus, evidence was admitted that the complainant was afraid of her father at the time she made the outcry against appellant. Additionally, evidence was admitted that her brother had previously raped her and that appellant betrayed her confidences. As the trial court recognized, while evidence of the father's previous beatings may have established a motive against the father, it did not establish a motive against appellant.

Appellant, therefore, did not meet his burden of showing that the disputed testimony was relevant. Tex. R. Evid. 401, 402. We hold that the trial court did not abuse its discretion in refusing to allow appellant to question the complainant about the prior beating by her father.

We overrule appellant's sole point of error.

Conclusion

We affirm the judgment of the trial court.

Adele Hedges

Justice

Panel consists of Justices Hedges, Keyes, and Duggan. ⁽¹⁾

Do not publish. Tex. R. App. P. 47.

1. The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.