In Re Ooa

358 S.W.3d 352, 2011 Tex. App. LEXIS 7416, 2011 WL 4031156
CourtCourt of Appeals of Texas
DecidedSeptember 13, 2011
Docket14-10-00512-CV
StatusPublished

This text of 358 S.W.3d 352 (In Re Ooa) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Ooa, 358 S.W.3d 352, 2011 Tex. App. LEXIS 7416, 2011 WL 4031156 (Tex. Ct. App. 2011).

Opinion

358 S.W.3d 352 (2011)

In the Matter of O.O.A., Appellant.

No. 14-10-00512-CV.

Court of Appeals of Texas, Houston (14th Dist.).

September 13, 2011.

*353 Don A. Hecker, Stafford, for appellant.

Gail Kikawa McConnell, Richmond, appellee.

Panel consists of Justices FROST, JAMISON, and McCALLY.

OPINION

MARTHA HILL JAMISON, Justice.

Appellant O.O.A., a juvenile, appeals the trial court's order of adjudication against him for engaging in delinquent conduct by engaging in sexual contact with a child younger than 17-years-old. After the jury found that appellant engaged in delinquent conduct, the trial court assessed punishment at 24 months' probation. In one issue, appellant contends that the trial court erred by denying appellant's request to cross-examine the complainant regarding her sexual orientation. Because we find such evidence was properly excluded on this record as irrelevant, we affirm.

Background

As 16-year-old L.J. was walking to the school nurse's office between classes on October 9, 2009 to buy crackers,[1] she saw appellant walking behind her within arm's reach. L.J. testified that appellant told her that she "was looking pretty" to which she replied, "Thank you." She said that he then grabbed the back of her shirt and asked if he could give her a kiss. When she said "no," he walked ahead and turned around as if to hug her. She tried to push him away, but she testified that he pushed her into the corner, between the wall and a vending machine across from the nurse's office. The vending machine blocked the view from the nurse's office of appellant and L.J. When appellant had L.J. against the wall, he pulled down the top of her shirt and one side of her bra. One breast was exposed, and L.J. testified that he grabbed and squeezed the exposed breast. Appellant again asked L.J. to kiss him. She was "choking him to get him off her and "had one of [her] hands ... between his neck and chest; and with [her] other hand, [she] was trying to pull up her shirt at the same time." She told appellant "to get his hands off" her but testified that appellant did not listen. L.J. then grabbed appellant's wrist and removed his hand from her breast. At some point after that, the door to the nurse's office opened, and appellant walked away.[2] This incident was recorded in part by a surveillance camera in the hallway. The video, which was shown to the jury, shows appellant grabbing L.J.'s arm and the two of them moving out of view of the camera: it does not show what happened after that, as the area between the vending machine and the wall was outside the range of the camera.

L.J. then walked into the nurse's office, but did not tell the nurse what happened because there were other students in the *354 office and she was embarrassed for them to hear. She went upstairs to see Robert Banks, an assistant principal, and told him what had happened. But she told Banks that she did not want to pursue the matter. She testified that she did not know Banks well and was uncomfortable talking to him because "he's a man." Banks testified that she was visibly shaken, which was "[d]efinitely out of character" because she was acting "vulnerable," rather than "handling things herself." After that, L.J. reported the incident to one of the police officers at the school. She felt more comfortable talking to him than Banks because she knew the officer well and he was a police officer. She prepared a written statement and then went to see another associate principal, Karin Grisdale. Grisdale testified that L.J. "had been crying" and "was very upset." L.J.'s account of what had happened was consistent each time she relayed it. After obtaining permission from L.J.'s mother, Grisdale also took L.J. to the Children's Advocacy Center (the Center), where she was interviewed again.

At trial, defense counsel asked L.J. about her interview at the Center, which was videotaped.[3] She agreed with defense counsel that during her interview, she had stated that she spent all of her time with a female friend. When the State objected to the relevancy of that line of questioning, counsel told the trial court that he wanted to show that L.J.'s credibility was at issue because she could not have spent all her time with this friend, who lived in San Antonio. The trial court allowed appellant's counsel to question L.J. outside the presence of the jury. The trial court then sustained the State's relevancy objection, and appellant's counsel subsequently sought permission to question L.J. about whether she had had a homosexual relationship with the friend. The State again objected to the relevance of that line of questioning, which the trial court sustained.

Later during L.J.'s testimony, appellant's counsel approached the bench, and the following colloquy ensued:

MR. HECKER [for appellant]: It is the position of the child that the sexual preference of this young lady is important and that the jury should be able to hear it because it could have a relationship between her testimony and the fact that she just doesn't relate to guys and I would ask that I would be able to ask her if her preference is that she's gay.
MS. JOHNSON [for the State]: Even if she doesn't like guys, it doesn't mean that a guy has a right to grab her breasts.
MR. HECKER: Well, it can have something to do with why she's making this allegation.
THE COURT: I'm not going to allow the question. I don't see the relevance at this point.
MR. HECKER: If I should ask—could I ask does she like guys?
THE COURT: No.

Relevancy

In his sole issue, appellant contends that the trial court abused its discretion in denying appellant's request to question L.J. about her sexual orientation in violation of appellant's Sixth Amendment right of confrontation under the United States Constitution and Texas Rule of Evidence 613(b). The State points out that, even though the trial court allowed appellant to cross-examine L.J. outside the presence of the jury, appellant did not make a record of the questions he wanted *355 to propound and the answers she would have given. To preserve error regarding his appellate issue, appellant was required to make a record as to the questions he wanted to ask L.J. and what her answers would have been, or at least what he expected her answers to be. See Johnson v. State, 800 S.W.2d 563, 566-67 (Tex.App.-Houston [14th Dist.] 1990, pet. ref'd). Because he failed to do so, appellant did not preserve error as to his sole appellate issue. See id.

But even if appellant had preserved error, his issue lacks merit. The determination of admissibility of evidence is within the sound discretion of the trial court and will not be overturned so long as the trial court's ruling was within the zone of reasonable disagreement. Lacaze v. State, 346 S.W.3d 113, 120-21 (Tex.App.-Houston [14th Dist.] 2011, no pet. h.). The Sixth Amendment right to confront witnesses includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest, or motives in testifying. Smith v. State, 352 S.W.3d 55, 64 (Tex.App.-Fort Worth 2011, no pet.).

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In re O.O.A.
358 S.W.3d 352 (Court of Appeals of Texas, 2011)

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Bluebook (online)
358 S.W.3d 352, 2011 Tex. App. LEXIS 7416, 2011 WL 4031156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ooa-texapp-2011.