Opinion issued June 28, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-17-00331-CR ——————————— JOHN HOLT CRAMBELL, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas Trial Court Case No. 1471924
MEMORANDUM OPINION
A jury convicted appellant, John Holt Crambell, of the first-degree felony
offense of aggravated sexual assault.1 After finding the allegations in an
1 See TEX. PENAL CODE ANN. § 22.021(a) (West Supp. 2017). enhancement paragraph true, the jury assessed appellant’s punishment at twenty-
eight years’ confinement. In two issues, appellant contends that (1) the trial court
erred by failing to include in the jury charge an instruction on the lesser-included
offense of sexual assault and (2) the trial court erroneously denied appellant his right
to impeach the complainant with a prior charge of filing a false report.
We affirm.
Background
A. Factual Background
The complainant, L.D., had problems with drug and alcohol addiction for
most of her adult life. Xanax was one of the drugs that she abused. In February 2015,
L.D. was separated from her husband and was living in an extended stay hotel in the
Sugar Land and Stafford area. L.D. was also engaged in a battle with her parents
regarding the custody of her ten-year-old son.
Around 10:00 or 11:00 p.m. on February 27, 2015, L.D. received a call from
a friend of hers from rehab who was celebrating his birthday and who asked her to
meet him at a club on the east side of downtown Houston. L.D. admitted that, earlier
that day, she had consumed methamphetamines, and by the time she received the
call from her friend, she was feeling anxious and not euphoric. When L.D. arrived
at the club, she found her friend, who was in his twenties, with a large group of
teenagers. All of these individuals seemed intoxicated. L.D. tried to convince her
2 friend to leave, but he refused, and she decided to stay at the club and wait for him.
L.D. admitted to smoking “a little” marijuana with someone while she waited at the
club. She denied consuming any other drugs or any alcohol while out that night.
L.D. mostly stayed near her car while she was at the club. At some point in
the night, she met appellant, who introduced himself to her as “John Holt.” L.D. did
not identify herself by her first name, but instead gave appellant a nickname.
Throughout the course of the evening, she witnessed appellant selling drugs to other
people at the club. L.D. stated that appellant seemed “off putting” and intimidating
at first, but he was also very friendly and charming, and, during their conversation
at the club, which lasted at least forty-five minutes, L.D. began to trust him.
L.D. was feeling anxious while she was at the club, and she asked appellant if
he could find her some Xanax. Appellant said that he would try, and he suggested
that they go back to his apartment, which was nearby. Appellant and L.D. left the
club in L.D.’s car, with L.D. driving. They stopped at a gas station on the way to
appellant’s apartment so L.D. could use the restroom. Unbeknownst to L.D. at the
time, while she was inside the gas station, appellant rifled through the glove
compartment of her car and put all of its contents—including L.D.’s car title,
insurance information, and prescription sleep medication—into a backpack he had
been carrying with him.
3 L.D. then drove to appellant’s apartment. L.D. remained in her car for around
thirty minutes while appellant went inside his apartment. When appellant came back
outside and got back in L.D.’s car, he confronted her and told her that he knew she
had given him a fake name, and he told her that he knew her real name, that she lived
in Sugar Land, and he “started rattling off a lot of details about [her] life that [she]
had no idea how he could possibly know.” L.D. was confused, but appellant would
“sandwich those comments [about her life] in with like comforting comments and
friendly comments,” so, while she felt threatened by appellant, she decided to stay
with him in the hope that he would still provide her with Xanax.
Appellant directed L.D. to return to the club where they had met, and, while
there, L.D. saw appellant sell methamphetamine to several people. They had been at
the club for about thirty minutes when appellant told L.D. to get back in the car
because he wanted to show her something, and they left again. L.D. was still driving
her car at this point. Appellant directed L.D. to an area east of downtown Houston
that had a field, some upscale condominium complexes, and a railroad track.
Appellant told L.D. that they needed to wait at this location because he had “his
people working on” finding them some Xanax. They waited at this location for
around forty-five minutes, and then appellant suggested that his sister might be able
to help them find Xanax, and appellant made a phone call. L.D. testified that she
4 “believed with all [her] heart [appellant] was on a mission to help [her] out, like he
was really trying.”
Appellant offered to drive L.D.’s car to his sister’s house, and L.D. allowed
him to do so. Appellant’s sister lived in Katy, Texas, and they started driving in that
direction from downtown Houston on I-10. On the way to appellant’s sister’s house,
appellant stopped at a branch of L.D.’s bank so that she could make a withdrawal in
order to pay for the Xanax. Because appellant was in the driver’s seat, L.D. gave
appellant her debit card and her PIN, and appellant made the transaction. Appellant
returned L.D.’s debit card to her, but he kept the cash that he had withdrawn from
her account.
Appellant and L.D. arrived at appellant’s sister’s house around 6:00 a.m.
Appellant’s sister told them that she could probably help them out, but she would
not be able to get any Xanax until around 9:00 a.m. Appellant suggested that they
wait, but L.D. told him that she did not want to wait and that she preferred to go back
to downtown Houston.
On the way back to downtown Houston, appellant stopped at a gas station and
took the keys to L.D.’s car with him inside the station. L.D. waited in the car for
around fifteen to twenty minutes, and while she was waiting, she looked inside the
glove compartment and discovered that it was empty. L.D. had put her prescription
medication in the glove compartment earlier that evening before she left her hotel
5 for the club, and she realized that appellant must have emptied the glove
compartment when she used the restroom before going to appellant’s apartment and
that this was how he had suddenly known personal information about her. L.D. went
inside the gas station. She thought about telling the gas station attendant what was
going on, but instead she found appellant using the money that he had withdrawn
from her bank account to play gambling machines.
L.D. tried to convince appellant to get back into her car, but he only agreed
after he had spent all of her money on the gambling machines. Appellant agreed to
drive L.D. back to downtown Houston. While they were in the car heading towards
downtown on I-10, L.D. confronted appellant about the missing contents of her
glove compartment. Appellant’s behavior “shifted” and he became very angry,
demanding to know how L.D. could accuse him of such actions after all of the private
information of his own that he had shared with her that evening. L.D. tried to appease
appellant, telling him not to worry about the medication that he had taken from the
glove compartment, but he remained angry for the rest of the trip downtown.
When they arrived at downtown Houston, appellant drove to an area on the
east side of downtown that had a combination of fields, warehouses, and
condominium complexes. Appellant pulled off of a dead-end road and into a loading
dock, where he parked L.D.’s car. Appellant said, “I’m tired of waiting. Take your
top off.” Appellant then pulled a knife with a retractable blade out of the left-front
6 pocket of his pants and held it in his left hand, resting his hand on his leg. L.D.
complied with his demands to remove her shirt and her bra, but when she tried to
cover her breasts with her arms, appellant told her, “I’m not going to tell you again.
If I have to tell you again, you’re going to be in trouble. Don’t cover yourself. Stop
covering yourself.” The knife remained in appellant’s hand while he forced L.D. to
undress.
Appellant then decided to back L.D.’s car out of the loading dock, and he
drove it to the adjacent street and parked facing a field. Appellant held the knife to
L.D.’s neck and ran it down her back, and he told her to undress completely. L.D.
could feel the knife touching her back, but appellant did not cut her with the knife.
L.D. complied with his demand to undress. Appellant then told her to do whatever
he wanted her to do or he “was going to bury [her] in that field across the way.” He
then forced L.D. to perform oral sex on him, and he held the knife against her back
during this act. At one point, L.D. stopped and sat up, and appellant, while still
holding the knife against her back, put his fingers in her vagina.
Appellant demanded that L.D. move to sit on top of him, but she refused due
to the limited amount of space in the driver’s seat of her car. Appellant again
threatened her by telling her that he was going to “bury [her] in the field.” He
continued holding the knife against her back and against her throat while they spoke.
L.D. then faked a seizure and, in the ensuing confusion, managed to grab her tank
7 top and her purse and get out of her car. L.D., while undressed and holding her tank
top against her chest, started running down the street. Appellant started her car and
began following her down the road.
A truck turned onto the road, and L.D. attempted to get the driver to stop and
help her, but the driver rolled down the window halfway and “shooed [her] away.”
Appellant kept following her in her car and continuously hollered at her, saying
things like, “Baby, get in the car.” Appellant stepped out of the car and again
demanded that L.D. get back in the car. L.D. told him to throw the knife to her, and
appellant did so. The knife landed on the ground, and L.D. picked it up and threw it
into some nearby brush. She then immediately started running toward a
condominium complex, and she saw a woman outside walking her dog. L.D.
screamed for help, and the woman picked up her dog and ran back inside her
apartment.2
L.D. managed to run into the condo complex where she hid around the corner
of a building and put her tank top on. She saw appellant, who had still been following
2 This woman, Abbey Gill Quattlebaumh, was outside walking her dogs on Melva Street, east of downtown Houston, when she saw L.D. on Clinton Street, which ran parallel to Melva, running down the street with no clothes on, screaming for help, and being followed by a car. She saw L.D. unsuccessfully attempt to get the truck driver to stop and help her. Quattlebaumh realized that she did not have her cell phone with her, nor did she have any kind of weapon, so she ran back to her house and immediately called 9-1-1. The trial court admitted Quattlebaumh’s 9-1-1 call into evidence.
8 her in her car, drive away and leave the area.3 L.D. then saw another woman, Akia
Penson, leaving the condos. L.D. ran toward Penson’s car, and Penson rolled down
her window. L.D. described what had happened to her and asked if Penson could
call 9-1-1. Penson did so, and both women spoke to the 9-1-1 dispatcher. Penson
brought clothes and a blanket for L.D., and she waited with L.D. until the police
arrived.
Houston Police Department Officer D. Von Quintus was in the area and
responded to the 9-1-1 calls. L.D. relayed what had happened to her, and she told
Officer Von Quintus that “John Holt” was responsible. L.D. also told Officer Von
Quintus that appellant had used a knife during the assault and that he had thrown the
knife from the car, and she pointed to the area where she had tossed the knife. L.D.
saw Officer Von Quintus search the area that she had indicated, and when he held
up a knife, L.D. identified the knife as the one appellant had used. The trial court
admitted the knife recovered by Officer Von Quintus into evidence, and L.D.
identified this knife at trial as the one used during the assault.
Officer Von Quintus admitted at trial that he was not wearing gloves when he
picked up the knife. He stated that the knife was in the “open” position when he
picked it up, and, at some point, he closed the knife. Upon examining the knife at
3 L.D. and her husband later searched for her car, and it was ultimately found around the corner from appellant’s apartment. 9 trial, Officer Von Quintus agreed with the State that the knife appeared to have a
“few little spec[k]s” of rust on the blade. He testified that he found the knife lying
on top of grass and that it appeared to him that the knife had been laying there for a
short period of time. Officer Von Quintus also admitted that he did not take any
pictures of the knife as he found it on the grass because his camera was in his patrol
vehicle at the time and not with him. He further stated that because he did not have
any envelopes for storing evidence with him at the time, he placed the knife in a
“little side pocket” of his patrol vehicle before submitting the knife as evidence when
he reached the station. Officer Von Quintus also testified that, in his initial written
report, he wrote that L.D. told him that she had grabbed the knife away from
appellant before throwing it away into the brush.
Detective J. Roscoe was assigned to investigate this case. Detective Roscoe
initially had difficulty determining who the suspect was because appellant had given
L.D. his first and middle names—John Holt—but not his last name. After Detective
Roscoe’s interview with L.D., he obtained surveillance photographs and video
showing L.D. and appellant at L.D.’s bank. Detective Roscoe used one of the
surveillance photographs to show to individuals in the area around where L.D. had
said appellant lived, and he learned where appellant worked. Upon visiting that
location, Detective Roscoe obtained appellant’s full name, and he was able to
10 compile a photo-array to show to L.D. L.D. made a tentative identification of
appellant in the photo-array.4
Shamika Kelley, a forensic DNA analyst at the Houston Forensic Science
Center, analyzed several pieces of evidence pertinent to this case, including swabs
from L.D.’s car, swabs from the knife recovered by Officer Von Quintus, and a
buccal swab from appellant. Kelley testified that two swabs were taken of the knife:
one from the handle and one from the blade. The swab of the knife’s handle revealed
a mixture of at least three contributors of DNA, and at least one male contributor.
Kelley testified, “[T]here were too many contributors in order to make a conclusion
on this item.” Thus, Kelley made no determination regarding who contributed DNA
profiles to that swab. With regard to the swab from the blade of the knife, Kelley
obtained no DNA profile.
B. Trial Proceedings
The State filed a pretrial motion in limine seeking to exclude evidence that
L.D. had been charged with filing a false report to officers in Fort Bend County in
2012 because this charge had later been dismissed for insufficient evidence. The
parties discussed this prior charge in a pretrial hearing. The State informed the trial
4 L.D. testified that she was “95 percent” certain of the identification she made in the photo-array. She stated that she thought the picture of appellant “looks like” the man who assaulted her, but appellant was “very gaunt” in the picture used in the photo- array and weighed more when she met him. She testified that she told this to Detective Roscoe, and he advised her to write “tentative” above appellant’s picture. 11 court that the charge arose out of a 9-1-1 call made by L.D. in which she stated that
her husband, who was living with a friend at the time, was suicidal, but when the
police arrived at the house where L.D.’s husband was staying, her husband denied
that he was suicidal. After further investigation, charges against L.D. were
dismissed, and she was not convicted of filing a false report.
Defense counsel argued that the prior charge might become relevant later in
the proceedings because L.D. lied to Detective Roscoe during her initial interview
with him, omitting the information that she had been with appellant because she was
attempting to buy drugs. Counsel argued that L.D. has “a habit of lying to the police.”
The trial court noted that lying to the police is relevant, although it “might be
understandable people do that when they’re looking for drugs.” The trial court then
stated:
[The prior charge is] not your typical false report to a police officer. So, right now it looks to me like that’s not very relevant. And if the case was dismissed, I really do find it’s not too relevant. Of course, I can look at it later based on the state of the record, but at this time I don’t see that it has much probative value. And it has lots of prejudicial value.
The trial court ordered the parties to approach the bench before discussing L.D.’s
prior false report charge.
At trial, L.D. admitted that initially she was not completely truthful in her
interview with Detective Roscoe because, in recounting what had happened to her
with appellant, she “diverted attention away from the fact that [she] was trying to
12 buy drugs.” When Detective Roscoe confronted her about being less than
forthcoming, she admitted that she was involved in an active case with her parents
over the custody of her son, and she admitted that she and appellant were together
because they had been searching for Xanax. Detective Roscoe testified similarly
that, during his interview with L.D., he confronted her because he felt as though
there was something missing from her account of events and she was not telling him
everything. He agreed that, eventually, L.D. told him about her quest to purchase
Xanax with appellant.
The State had the following exchange with Detective Roscoe:
The State: After [L.D.] provided further information during her statement, did her story in your mind start to now make sense? Roscoe: Yes. The State: And at any time was she charged with giving a false statement to the police? Roscoe: Not—not for this, no. The State: For this offense is what I’m asking. Roscoe: Correct. The State: She wasn’t charged with that for omitting certain things in her statement? Roscoe: That’s correct.
Outside the presence of the jury, defense counsel argued that, by asking those
questions of Detective Roscoe, the State had opened the door to evidence concerning
L.D.’s prior charge for filing a false report. Defense counsel requested that he be 13 allowed to question Detective Roscoe about his confronting L.D. over her prior
false-report charge.
The trial court asked the attorneys additional questions about L.D.’s prior
charge. Defense counsel had a copy of the offense report, and he informed the trial
court that L.D. had called the Fort Bend County Sheriff’s Department claiming that
her husband was trying to commit suicide. Officers spoke with L.D.’s husband and
his roommate, and the officers determined that L.D.’s report was false. Defense
counsel represented that the offense report included additional information about
L.D.’s drug abuse, as well as information about her marital problems and alleged
threatening and harassing messages that L.D. had sent to her husband. Defense
counsel also represented that the case was dismissed because L.D.’s husband later
decided he did not want to prosecute. It was undisputed that the charge was
dismissed and L.D. was never convicted of filing a false report. The trial court ruled
that because L.D. did not plead guilty, was never found guilty, and did not have a
conviction for filing a false report, the prejudicial effect of the prior charge
outweighed the probative value.
During the charge conference, defense counsel requested that the trial court
instruct the jury on the lesser-included offense of sexual assault. The following
exchange occurred with the trial court:
14 The Court: Okay. And what evidence is there in the record that there was no knife used? Since the complainant said it was used and it was recovered. Defense counsel: Well, Your Honor, because the credibility is solely at stake because there are no cuts, there are no abrasions, no lacerations, or anything on her body indicating that a deadly weapon was used, the jury may believe that a sexual assault took place; but they may believe that a deadly weapon was, in fact, not used. His fingerprints, his DNA, is not on that knife. So, that is a contested issue. So, I believe that there is, you know, some room for the Court to include the lesser included offense of sexual assault. It’s the jury’s decision to determine if it’s aggravated assault or not—aggravated sexual assault, Your Honor.
The trial court stated that it did not “see any basis to give the lesser,” and it refused
to give the requested lesser-included offense instruction.
During deliberations, the jury sent the following request: “Can we see the
section of the testimony from [L.D.] regarding when the knife was thrown from the
vehicle?” The jury also requested to review “the testimony from Officer Von
Quintus regarding the knife.” Ultimately, the jury found appellant guilty of the
offense of aggravated sexual assault, and, after finding the allegations in an
enhancement paragraph true, it assessed his punishment at twenty-eight years’
confinement. This appeal followed.
15 Lesser-Included Offense
In his first issue, appellant contends that the trial court erred by denying his
request to instruct the jury concerning the lesser-included offense of sexual assault.
Specifically, appellant contends that there was “compelling evidence” to support the
conclusion that he did not use a deadly weapon while sexually assaulting L.D.
A. Governing Law
Code of Criminal Procedure article 37.09 pertains to lesser-included offenses
and provides that an offense is a lesser-included offense if:
(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006).
Courts apply a two-step analysis to determine whether an instruction on a
lesser-included offense should be given to the jury. State v. Meru, 414 S.W.3d 159,
162 (Tex. Crim. App. 2013); Cavazos v. State, 382 S.W.3d 377, 382 (Tex. Crim.
App. 2012). The first step of this analysis is a question of law that does not depend
on the evidence at trial and compares the elements of the offense as alleged in the
16 indictment with the elements of the requested lesser-included offense. Meru, 414
S.W.3d at 162; see Hall v. State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007)
(holding that first step in lesser-included offense analysis must be “capable of being
performed before trial by comparing the elements of the offense as they are alleged
in the indictment or information with the elements of the potential lesser-included
offense”). The question at this step is, “[A]re the elements of the lesser offense
‘established by proof of the same or less than all the facts required to establish[] the
commission of the offense charged’?” Ex parte Watson, 306 S.W.3d 259, 264 (Tex.
Crim. App. 2009) (quoting TEX. CODE CRIM. PROC. ANN. art. 37.09(1)). Courts
compare the statutory elements and any “descriptive averments,” such as “non-
statutory manner and means[] that are alleged for purposes of providing notice,”
alleged in the indictment for the greater offense to the statutory elements of the lesser
offense. Id. at 273 (op. on reh’g) (per curiam).
If the analysis under the first step supports a conclusion that the defendant’s
requested lesser offense is a lesser-included offense, the court moves to the second
step of the analysis and considers whether a rational jury could find that, if the
defendant is guilty, he is guilty only of the lesser offense. Meru, 414 S.W.3d at 162–
63. This step is a factual determination that is based on the evidence presented at
trial. Id. at 163. If there is evidence that raises a fact issue on whether the defendant
is guilty only of the lesser offense, a lesser-included offense instruction is warranted,
17 “regardless of whether the evidence is weak, impeached, or contradicted.” Id.; Hall,
225 S.W.3d at 536 (“In this step of the analysis, anything more than a scintilla of
evidence may be sufficient to entitle a defendant to a lesser charge.”). The evidence
must establish the lesser offense as a “valid, rational alternative to the charged
offense.” Hall, 225 S.W.3d at 536 (quoting Forest v. State, 989 S.W.2d 365, 367
(Tex. Crim. App. 1999)). The evidence may be “weak or contradicted,” but it “must
still be directly germane to the lesser-included offense and must rise to a level that a
rational jury could find that if [the defendant] is guilty, he is guilty only of the lesser-
included offense.” Cavazos, 382 S.W.3d at 385. To meet this threshold, the evidence
must be more than mere speculation; this threshold “requires affirmative evidence
that both raises the lesser-included offense and rebuts or negates an element of the
greater offense.” Id.
B. Analysis
In the first step of the lesser-included offense analysis, we consider the
statutory elements of aggravated sexual assault as these elements were modified by
the particular allegations in the indictment:
(1) the appellant (2) intentionally or knowingly (3) caused the penetration of L.D.’s mouth by his sexual organ (4) without the consent of L.D. (5) appellant compelled L.D. to submit and participate by threatening to use force and violence against L.D. 18 (6) L.D. believed appellant had the present ability to execute the threat (7) in the course of the same criminal episode, appellant used and exhibited a deadly weapon, a knife.
See TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(ii), (2)(A)(iv) (West Supp. 2017)
(setting out elements of aggravated sexual assault); see id. § 22.021(c) (providing
that aggravated sexual assault is without consent of other person if aggravated sexual
assault “occurs under the same circumstances listed in Section 22.011(b),” which
describes when sexual assault is without other person’s consent).
We then compare these elements with the elements of the lesser offense of
sexual assault that could be included in that offense:
(1) the appellant (2) intentionally or knowingly (3) causes the penetration of the mouth of another person by his sexual organ (4) without that person’s consent (5) appellant compels the other person to submit or participate by threatening to use force or violence against the other person (6) and the other person believes that appellant has the present ability to execute the threat.
See id. § 22.011(a)(1)(B), (b)(2) (West Supp. 2017). Here, the only difference
between the elements of the lesser offense of sexual assault and the offense of
aggravated sexual assault as charged in the indictment is that, to establish aggravated
sexual assault, the State was required to prove that appellant used and exhibited a 19 deadly weapon, a knife, during the course of the same criminal episode. In this case,
the elements of the lesser offense of sexual assault are “established by proof of the
same or less than all the facts required to establish the commission of the offense
charged.” See TEX. CODE CRIM. PROC. ANN. art. 37.09(1); Ex parte Watson, 306
S.W.3d at 273 (op. on reh’g). We conclude that, in this case, sexual assault is a
lesser-included offense of aggravated sexual assault.
We therefore turn to the second step of the lesser-included offense analysis:
whether, considering the evidence presented at trial, a rational jury could find that,
if appellant is guilty, he is guilty only of the lesser offense of sexual assault. See
Meru, 414 S.W.3d at 162–63.
Appellant contends that there is evidence in the record that, if he was guilty,
he was guilty only of the lesser offense of sexual assault because “there was a
question with regard to the use of a knife” during the assault on L.D. Specifically,
appellant points out that the knife was rusted in places and was recovered from the
ground, not from L.D.’s car; that forensic analysis did not recover appellant’s
fingerprints or DNA from the knife; and that L.D. had no injuries from a knife. He
also points out that, during deliberations, the jury asked to see the testimony from
L.D. “regarding when the knife was thrown from the vehicle” and the testimony
from Officer Von Quintus “regarding the knife,” suggesting that the jury was
“skeptical” about appellant’s use of the knife during the sexual assault. He thus
20 argues that the record includes some evidence that he did not use a knife during the
assault and he was therefore entitled to an instruction on the lesser-included offense
of sexual assault. We disagree.
L.D. testified that, after the unsuccessful search for Xanax, appellant drove
her car back to the east side of downtown Houston and parked her car in a loading
dock. Appellant turned off the car and said, “I’m tired of waiting. Take your top
off.” L.D. testified that appellant pulled a retractable knife out of the left pocket of
his pants and held it, resting on his leg, with his left hand. She stated that, upon
seeing the knife, she complied with appellant’s demand to undress.
L.D. testified that appellant then backed her car out of the loading dock and
stopped on the street next to the loading dock, facing a field. Appellant then held the
knife to the back of L.D.’s neck, ran it down her back, and told her to undress
completely. L.D. stated that she could feel the knife on her back, but appellant did
not cut her with the knife. L.D. undressed, and appellant told her to follow his
demands or he would bury her in the field the car was facing. Appellant then forced
L.D. to perform oral sex on him, and he also penetrated her with his fingers.
Appellant continued to hold the knife against L.D.’s back and her throat throughout
the assault.
L.D. eventually managed to get out of the car by faking a seizure, and she
grabbed her shirt and started to run down the street. Appellant followed her in the
21 car, demanding that L.D. get back into the car. L.D. told appellant to throw the knife
to her, which he did, and she picked it up off the ground and threw it into some brush
on the side of the road. L.D. started running again, and appellant again followed her
in her car. L.D. hid inside of a condominium complex, and she saw appellant drive
away in her car.
L.D. told Officer Von Quintus—the responding police officer—that appellant
had used a knife during the assault and that he had thrown the knife out of the car.
She pointed to the area where she had thrown the knife, and Officer Von Quintus
searched that area. She saw Officer Von Quintus pick up the knife from the brush
and hold it up to her, and L.D. indicated to him that that was the knife appellant had
thrown from the car. The trial court admitted the knife into evidence, and L.D.
identified the knife at trial as the one used during the assault.
Officer Von Quintus testified that when he spoke with L.D. near the scene of
the assault, she told him that appellant had used a knife. He testified that L.D. did
not have the knife in her possession, but she informed him that she had thrown the
knife into a vacant lot and pointed to an area by a tree.5 Officer Von Quintus
recovered a knife from the area to which L.D. had pointed and showed that knife to
her. He identified the knife admitted into evidence as the knife he had recovered.
5 On cross-examination, Officer Von Quintus testified that L.D. initially told him that she had grabbed the knife from appellant and thrown it away while she was running. 22 Officer Von Quintus stated that the blade of the knife a “few little spec[k]s” of rust
on it, but the knife was lying on the grass and appeared that it had been there for a
short amount of time. Officer Von Quintus admitted that he was not wearing gloves
when he picked up the knife from the ground, that he closed the blade of the knife
at some point, that he did not take any pictures of the knife on the grass “the way
[he] found it,” and that he placed the knife in a “side pocket” of his patrol vehicle
because he did not have an evidence envelope with him.
Shamika Kelley testified that she tested portions of the knife for the presence
of DNA. Kelley stated that a swab of the top edge and handle of the knife revealed
a mixture of DNA profiles, with at least three contributors, and at least one male
contributor. Kelley testified that “there were too many contributors in order to make
a conclusion on this item” and that no determination was made with regard to that
swab. Kelley testified that no DNA profile was found on the swab of the tip and
blade of the knife.
To prove the charged offense of aggravated sexual assault, the State was
required to prove that appellant caused the penetration of L.D.’s mouth with his
sexual organ, without L.D.’s consent, and that appellant “use[d] or exhibit[ed] a
deadly weapon,” here, a knife, “in the course of the same criminal episode.” TEX.
PENAL CODE ANN. § 22.021(a)(1)(A)(ii), (a)(2)(A)(iv). The State was not required
to present evidence that appellant’s fingerprints or DNA was on the knife, nor was
23 the State required to prove that appellant caused bodily injury to L.D. with the knife.6
L.D. testified that appellant threatened her with a knife throughout the assault,
holding the knife to her back and against her throat while he forced her to perform
oral sex on him. She testified that, after she escaped from her car, she convinced
appellant to throw the knife to her, which he did, and which she then threw into some
nearby brush. L.D. informed Officer Von Quintus of this, and he discovered a knife
in the place that L.D. indicated she had tossed the knife. L.D. identified—both at the
scene and at trial—the knife that Officer Von Quintus recovered as the knife that
appellant used during the assault.
Here, there was no testimony or evidence that appellant did not use a knife
during the assault. The evidence that appellant’s DNA profile could not be recovered
from the knife and the evidence that L.D. did not have any injuries consistent with
knife wounds are just that: evidence that appellant’s DNA profile could not be
recovered from the knife and evidence that L.D. did not sustain a knife wound. To
infer that because appellant’s DNA profile could not be recovered from the knife
6 One of the ways in which a person can commit the offense of aggravated sexual assault is if the person “causes serious bodily injury or attempts to cause the death of the victim or another person in the course of the same criminal episode.” TEX. PENAL CODE ANN. § 22.021(a)(2)(A)(i). The State did not, however, charge appellant with this particular manner and means of committing aggravated sexual assault. Instead, the aggravating element included in the indictment was whether appellant “used and exhibited a deadly weapon, namely a KNIFE.” See id. § 22.021(a)(2)(A)(iv). 24 and because L.D. did not sustain a knife wound, appellant therefore did not use or
exhibit a knife during the sexual assault of L.D. is entirely speculative. See Cavazos,
382 S.W.3d at 385 (stating that, to entitle defendant to lesser-included offense
instruction, evidence raising lesser offense must be more than mere speculation).
Evidence raising a fact issue on whether a defendant is guilty only of the lesser
offense may be weak or contradicted, but it must establish the lesser offense as a
“valid, rational alternative” to the charged offense and it must be “directly germane
to the lesser-included offense.” See id. This standard thus requires “affirmative
evidence that both raises the lesser-included offense and rebuts or negates an element
of the greater offense.” Id. Such affirmative evidence is not present here.
We conclude that the trial court did not err when it refused to include an
instruction on the lesser-included offense of sexual assault. See Meru, 414 S.W.3d
at 162–63 (stating that defendant is entitled to instruction on lesser-included offense
if, based on some evidence presented at trial, rational jury could find that if defendant
is guilty, he is guilty only of lesser offense).
We overrule appellant’s first issue.
Exclusion of Evidence of Prior Charge
In his second issue, appellant contends the trial court erroneously denied him
his right to impeach L.D. with a prior charge for filing a false report. Specifically,
appellant argues that the State opened the door to this impeachment when the State
25 asked Detective Roscoe if “at any time was [L.D.] charged with giving a false
statement to the police,” and Roscoe responded, “[N]ot for this, no.”
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016); Harris
v. State, 152 S.W.3d 786, 793 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)
(stating that trial court must be given wide latitude in its decision to admit or exclude
evidence and appellate courts should exercise “reluctance” in deciding to reverse
trial court’s decision). A trial court abuses its discretion only when the court’s
decision was so clearly wrong as to lie outside the zone within which reasonable
persons might disagree. Henley, 493 S.W.3d at 83 (quoting Taylor v. State, 268
S.W.3d 571, 579 (Tex. Crim. App. 2008)); Binnion v. State, 527 S.W.3d 536, 545
(Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
Texas Rule of Evidence 403 provides that a trial court may exclude otherwise
relevant evidence if its probative value is substantially outweighed by a danger of
unfair prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence. TEX. R. EVID. 403. When conducting a
Rule 403 analysis, the trial court must balance:
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main
26 issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). We review
a trial court’s ruling under Rule 403 for an abuse of discretion. Pawlak v. State, 420
S.W.3d 807, 810 (Tex. Crim. App. 2013).
Rule of Evidence 608(b) provides, “Except for a criminal conviction under
Rule 609, a party may not inquire into or offer extrinsic evidence to prove specific
instances of the witness’s conduct in order to attack or support the witness’s
character for truthfulness.” TEX. R. EVID. 608(b); see Hammer v. State, 296 S.W.3d
555, 563 (Tex. Crim. App. 2009) (stating that, under Rule 608, witness’s general
character for truthfulness may be shown only through reputation or opinion
testimony, and may not be attacked by cross-examining witness or offering extrinsic
evidence concerning specific prior instance of untruthfulness); see also Pierson v.
State, 426 S.W.3d 763, 771–72 (Tex. Crim. App. 2014) (upholding trial court’s
decision to exclude evidence of prior allegedly false accusation of sexual abuse
because defendant failed to demonstrate that question “was anything more than a
prelude to impeachment on a collateral matter and an impermissible attempt to attack
the complaining witness’s general credibility with evidence of specific instances of
conduct”)
27 B. Analysis
Here, defense counsel sought to question Detective Roscoe about a prior
charge against L.D. for filing a false report to police in Fort Bend County in 2012.
On two occasions during the proceedings—in a pretrial hearing on the State’s motion
in limine and after the examination of Detective Roscoe—the attorneys and the trial
court discussed the circumstances of that prior charge. Allegedly, L.D. and her
husband were separated at the time of the prior charge and were having marital
difficulties, which involved, among other things, L.D.’s drug abuse and her leaving
threatening and harassing messages for her husband. L.D. called the Fort Bend
County Sheriff’s Department to report that her husband intended to commit suicide.
Officers were dispatched to where her husband was living with a roommate, and her
husband denied attempting or intending to commit suicide. Although L.D. was
charged with filing a false report, it is undisputed that the charge against her was
dismissed and that she does not have a criminal conviction for filing a false report.
The trial court, based primarily on the fact that the charge against L.D. was dismissed
and she did not have a conviction, ruled that the prejudicial effect of the prior charge
outweighed its probative value and did not allow defense counsel to question
Detective Roscoe or L.D. about this prior charge.
As the State points out, although L.D. had previously been charged with filing
a false report, that charge had been dismissed for insufficient evidence and thus she
28 had not been convicted of filing a false report. This is therefore not a situation in
which the matter could quickly be established by asking L.D. or Detective Roscoe
if she had previously been convicted of filing a false report or by introducing a
judgment for a false-report conviction. Whether L.D. intentionally made a false
report to police officers on this prior occasion has never been established in a
criminal proceeding. Thus, for this prior allegation to have any relevance to the
truthfulness of L.D.’s statements to police on this occasion regarding appellant’s
alleged sexual assault of L.D., defense counsel would need to put on evidence
concerning the falsity of her prior report, perhaps through the testimony of her
husband or the investigating officer of that incident. The trial court reasonably could
have concluded that allowing such testimony would confuse and distract the jury
from the issue in this case—whether appellant committed aggravated sexual assault
of L.D. See TEX. R. EVID. 403 (providing that court may exclude relevant evidence
if probative value is substantially outweighed by danger of, among other things,
confusing issues, misleading jury, or undue delay); see also TEX. R. EVID. 401
(providing that evidence is relevant if it has any tendency to make fact of
consequence more or less probable than it would be without evidence).
Moreover, because L.D. did not have a criminal conviction for filing a false
report, use of the prior charge would violate Rule 608(b)’s prohibition against using
specific instances of a witness’s conduct to attack the witness’s character for
29 truthfulness. See TEX. R. EVID. 608(b); Hammer, 296 S.W.3d at 563 (stating that
witness’s general character for truthfulness may be shown only through reputation
or opinion testimony, and may not be attacked by cross-examining witness or
offering extrinsic evidence concerning specific prior instance of untruthfulness); see
also Pierson, 426 S.W.3d at 771–72 (upholding exclusion of prior false accusation
of sexual abuse because use of evidence was attempt to impeach on collateral matter
and impermissible attack on general credibility with specific instance of conduct).
Based on this record and the circumstances involving the prior dismissed charge of
filing a false report, we cannot conclude that the trial court’s decision to exclude this
evidence falls outside the “zone of reasonable disagreement.” We hold that the trial
court did not abuse its discretion by excluding under Rule 403 the evidence of L.D.’s
prior dismissed charge for filing a false report.7 See TEX. R. EVID. 403.
We overrule appellant’s second issue.
7 Appellant cites the Court of Criminal Appeals’ decision in Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009), for the proposition that otherwise inadmissible evidence may become admissible if a party “opens the door,” and, therefore, the State opened the door to L.D.’s prior charge during its questioning of Detective Roscoe. The Court of Criminal Appeals also stated in Hayden, in the context of rebuttal evidence, that even if a party opens the door to rebuttal evidence, “the trial judge still has the discretion to exclude the evidence under Rule 403.” Id.; Winegarner v. State, 235 S.W.3d 787, 790–91 (Tex. Crim. App. 2007) (stating that even if witness “opens the door” to otherwise inadmissible evidence by creating false impression of prior troubles with law, trial court may still permissibly exclude evidence under Rule 403). 30 Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes Justice
Panel consists of Justices Jennings, Keyes, and Higley.
Do not publish. TEX. R. APP. P. 47.2(b).