In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-18-00484-CR ___________________________
JOSHUA ALLEN AUSTIN, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 3 Tarrant County, Texas Trial Court No. 1509312D
Before Sudderth, C.J.; Birdwell and Bassel, JJ. Memorandum Opinion by Justice Bassel MEMORANDUM OPINION
I. Introduction
Appellant Joshua Allen Austin appeals his conviction by a jury for continuous
sexual abuse of a child. The jury assessed punishment at 30 years’ confinement in the
Texas Department of Criminal Justice. The trial court rendered judgment in
accordance with the jury’s guilt and punishment verdicts.
Appellant raises a single point on appeal. He contends that the trial court
impaired his right to present a “full and vital” defense when it restricted his right to
confront a witness through cross-examination. Specifically, he argues that the trial
court improperly denied him the right to cross-examine the forensic interviewer who
had interviewed the preteen complainant. He claims that he was deprived of the right
to cross-examine the interviewer about the complainant’s psychiatric treatment history
and to use that history to challenge the forensic interviewer’s testimony about how an
abuser might “groom” his victim. In essence, Appellant claims that the cross-
examination was needed to rebut a claim that he had suggested homeschooling the
complainant to afford him an opportunity to abuse her when it was her psychiatric
problems that had caused her to be unable to attend school.
We hold that Appellant has failed to preserve error on the point he raises on
appeal. The argument that Appellant makes to us is not the same as the argument
that he raised in the trial court. Further, the record did not inform the trial court of
the substance of the offer that Appellant had sought to make.
2 Even if we reached the merits of Appellant’s argument, we would hold that the
trial court did not place such restrictions on Appellant’s cross-examination of the
forensic interviewer that he was deprived of the ability to present a vital defensive
theory.
We therefore affirm the judgment of the trial court.
II. Background
Appellant does not challenge the sufficiency of the evidence. Thus, we offer
only an abbreviated summary of the underlying facts presented at trial and the trial
court’s Rule 412 hearing.
The complainant was a preteen, who made physical complaints that caused her
to be taken to the hospital. A physical examination revealed that she was pregnant.
Initially, the complainant stated that the father was a boy her age.
Subsequently, she made a statement that her stepfather, Appellant, was the father.
The complainant’s child was not carried to term, and no genetic testing was
performed to determine the identity of the child’s father.
After the complainant’s pregnancy prompted investigations, two forensic
interviews of the complainant were conducted. The complainant’s statements during
those interviews also diverged as to the identity of the father. In the first, the
complainant identified a boy who was her age as the father. In the second interview,
she described a sexual history with her stepfather.
3 The trial spanned several days and included testimony from the complainant;
various members of her family, including her mother and her aunt; law-enforcement
and child-welfare officials, including an investigator for Child Protective Services, a
forensic interviewer, and a detective; and Appellant and various members of his
family.
The trial court conducted a Rule 412 hearing and ruled that certain evidence
would not be admissible. The trial court also sustained a number of objections when
Appellant’s counsel sought to cross-examine witnesses about evidence that was the
subject of the Rule 412 hearing and that delved into psychiatric treatment received by
the complainant.
III. Analysis
A. Appellant has failed to preserve error for the complaint that he makes on appeal.
Our first challenge is to address the dissonance between the argument made in
Appellant’s brief and the argument he made to the trial court. The differences
between the arguments impact whether Appellant failed to preserve error by not
giving the trial court the opportunity to rule on the argument that he makes to us. We
hold that the trial court was never presented with the argument that Appellant makes
on appeal with sufficient clarity for that court to understand why it was allegedly
making the error that Appellant now contends it made. Further, Appellant’s offer of
proof never addressed the witness who is now the focus of his appellate argument,
4 demonstrated that she had a level of knowledge that made a cross-examination of her
viable on the topic at issue, or explained why Appellant had not attempted to develop
the topic during the original cross-examination of the witness.
The focus of Appellant’s argument on appeal is that the trial court should have
permitted the forensic interviewer who sponsored and described the complainant’s
two forensic interviews to be cross-examined about the complainant’s psychiatric
treatment history. 1 This argument focuses on the theory that the forensic interviewer
explained the grooming process that an abuser might use before sexually abusing a
child. Appellant’s theory is premised on the fact that the forensic interviewer
explained that one tactic that might be used by an abuser is to isolate the child; here,
Appellant claims that the forensic interviewer’s testimony about the isolation tactic
used in grooming suggested that Appellant had isolated the complainant by
homeschooling her. Appellant’s theory of the relevance of the complainant’s
psychiatric treatment history is that it provided a non-nefarious reason why the
complainant was homeschooled—her psychiatric issues required her removal from a
public-school environment.
This theory is at odds with the reasons offered by Appellant’s counsel when
she made an offer of proof and argued for the admission of the complainant’s
psychiatric treatment history. That argument focused on the theory that the
The forensic interviewer described her role as “someone who is professionally 1
trained to speak to children, interview children about allegations of abuse, as well as adults who have, like, cognitive or communication delays.”
5 complainant’s mother had left a false impression that the child had no mental or
behavioral issues. The offer of proof did not specify a particular witness from whom
the testimony should be elicited. The offer also did not focus on the forensic
interviewer or mention—much less explain—why she in particular should be cross-
examined on the issue of the complainant’s psychiatric treatment history. Defense
counsel did reference needing testimony to explain why the complainant was
homeschooled, but that explanation was not tied to the testimony of the forensic
interviewer.
Our specific concern about the preservation is that to the extent the argument
that Appellant presents to us has any validity, the trial court was never presented with
this argument and thus was never given a reason why the forensic interviewer should
have been cross-examined on the complainant’s psychiatric treatment history.
Appellant articulated the legal basis for the offer but did not tell the trial court how, in
the context of the forensic interviewer’s testimony, a cross-examination of her about
the complainant’s psychiatric treatment history was relevant or vital to his
presentation of a defensive theory. Nor did the objection explain the need to cross-
examine the forensic interviewer in particular on this topic when she had no
independent knowledge of the complainant’s psychiatric treatment history and when
all that she knew about that history the jury also knew because they had heard the
recordings of the forensic interviews in their entirety.
6 Generally, the complaint made on appeal must comport with the complaint
made in the trial court or the error is forfeited. Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009)
(“A complaint will not be preserved if the legal basis of the complaint raised on
appeal varies from the complaint made at trial.”); Pena v. State, 285 S.W.3d 459, 464
(Tex. Crim. App. 2009) (“Whether a party’s particular complaint is preserved depends
on whether the complaint on appeal comports with the complaint made at trial.”). To
determine whether the complaint on appeal conforms to that made at trial, we
consider the context in which the complaint was made and the parties’ shared
understanding at that time. Clark, 365 S.W.3d at 339; Resendez v. State, 306 S.W.3d
308, 313 (Tex. Crim. App. 2009); Pena, 285 S.W.3d at 464.
More specifically, to preserve error on a claim that the trial court improperly
restricted cross-examination, an appellant has a two-pronged burden. The first prong
is to establish that the trial court understood that the legal basis for the objection is
that a ruling had infringed on the defendant’s Sixth Amendment rights by limiting his
ability to confront a witness. Golliday v. State, 560 S.W.3d 664, 669 (Tex. Crim. App.
2018) (stating that under Texas Rule of Appellate Procedure 33.1, “Appellant was
responsible for preserving the error he sought to raise on appeal by specifically
articulating the legal basis for his proffer at trial” (citing Reyna v. State, 168 S.W.3d 173,
179 (Tex. Crim. App. 2005))). We assume that Appellant gave the trial court an
adequate legal ground for his complaint.
7 The second prong of preservation stems from Texas Rule of Evidence 103,
which ensures that a trial court knows what the objecting party wants to offer: “if the
ruling excludes evidence, a party informs the court of its substance by an offer of
proof, unless the substance was apparent from the context.” Tex. R. Evid. 103(a)(2).
This prong of preservation has alternative approaches depending on the appellant’s
complaint.
If the offer relates to excluded evidence, an offer must give the trial court an
explanation why the evidence is needed. Golliday, 560 S.W.3d at 669 (citing Holmes v.
State, 323 S.W.3d 163, 166–67, 171 (Tex. Crim. App. 2009)). The court of criminal
appeals has described the rationale and burden to meet the second prong when the
question is the exclusion of evidence:
Rule of Evidence 103(a)(2) limits the scope of issues which may be appealed when evidence is limited or excluded. “Error may not be predicated upon a ruling [that] . . . excludes evidence unless a substantial right of the party is affected, and . . . the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked.” The offer of proof may be in question-and-answer form or in the form of a concise statement by counsel. “An offer of proof to be accomplished by counsel’s concise statement must include a reasonably specific summary of the evidence offered and must state the relevance of the evidence unless the relevance is apparent, so that the court can determine whether the evidence is relevant and admissible.” The primary purpose of the offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and harmful. A secondary purpose is to permit the trial [court] to reconsider [its] ruling in light of the actual evidence.
Holmes, 323 S.W.3d at 168 (emphasis added) (footnotes omitted).
8 The other alternative to meeting the second prong of preservation prescribed
by Rule 103 deals with a restriction on the scope of cross-examination. Id. In that
circumstance, an appellant bears a different burden:
“[T]he defendant need not show what his cross-examination of the witness would have affirmatively established; he must merely establish what general subject matter he desired to examine the witness about during his cross- examination and, if challenged, show on the record why such should be admitted into evidence.” In such a case[,] the trial court’s ruling has prevented a defendant from questioning a State’s witness about subject matters which affect the witness’s credibility, that is, matters which might show malice, ill feeling, ill will, bias, prejudice, or animus.
Id. (emphasis added) (footnote omitted).
It is with respect to the second prong of preservation that we find the flaw, and
that flaw exists no matter whether Appellant’s argument is that the trial court
excluded evidence of the complainant’s psychiatric treatment history or restricted the
scope of cross-examination of the forensic interviewer. First, the need to interrogate
the forensic interviewer about the complainant’s psychiatric treatment history was
never made clear to the trial court during the offer of proof. Here, the forensic
interviewer’s name came up in two instances over the two days that the offer
occurred. Appellant’s trial counsel first referenced the need to cross-examine the
forensic interviewer not about the complainant’s psychiatric history but about the
complainant’s alleged prior sexual misconduct, which is not the basis of Appellant’s
appellate complaint.2
2 The first exchange that mentioned the forensic interviewer is as follows:
9 Appellant’s counsel took up the matter again the next day and prefaced her
offer by saying only that “[w]e were discussing the cross-examination limitation on the
forensic interviewer and further the limitations on my cross-examination, not allowing
me to comment on the family law case in any matter.” During the offer of proof on
the second day, Appellant’s counsel never mentioned the specific need to cross-
examine the forensic interviewer on the complainant’s psychiatric treatment history.
The only time that the forensic interviewer’s name was mentioned occurred during
the following exchange:
[DEFENSE COUNSEL]: Well, each of the State’s witnesses have indicated that it was Joshua Austin’s idea to pull [the complainant] out of public school.
I believe that this incident -- these incidents of July of 2016 would be relevant to consideration by this jury to rebut several assertions made by the State and to show the character of the alleged victim in this case. And Rule 412(a) states that, of course, that specific instances of conduct of [the] alleged victim’s sexual behavior is not admissible unless it is necessary to rebut or explain scientific or medical evidence offered by the prosecutor.
The evidence offered by the prosecutor through the[] . . . forensic interview[er], Alexis Chase Harrison, indicated [that] she [had] described for the jury as an expert several factors that she considers in determining -- basically, in her -- the substance of her testimony was that she felt [the complainant’s] allegations were true based on her reaction.
I was not allowed to cross-examine that witness regarding any prior sexual misconduct in which that witness was a perpetrator, and I feel [that] had I been allowed to proffer that -- elicit that testimony on cross- examination, it would have -- in essence, I was unable to conduct a full cross-examination of that witness based on these reports. [Emphasis added.]
10 THE COURT: Well, it was, he said it was.
[DEFENSE COUNSEL]: And the impression that the State has elicited is that he’s done this in an attempt to isolate her. Alexis Chase Harrison [(the forensic interviewer).]
When challenged to explain the interrelation between the complainant’s psychiatric
history and grooming, Appellant’s counsel did not offer one but shifted to a
justification that the evidence rebutted the impression that she was a normal child.
Thus, the only specific topic that Appellant told the trial court that he needed
to cross-examine the forensic interviewer on was regarding the complainant’s alleged
prior sexual misconduct. Perhaps out of fear of the restrictions of Rule 412,3
Appellant refocuses his appellate argument to argue that the cross-examination should
have included the complainant’s psychiatric history. But Appellant’s trial counsel
never told the trial court the point that he attempts to make on appeal: his alleged
need to cross-examine the forensic interviewer about the complainant’s psychiatric
treatment history in order to challenge the forensic interviewer’s testimony on
grooming. Thus, the trial court never had the opportunity that an offer of proof
should provide—an understanding of what Appellant wanted, why any prior rulings
were in error, and how those rulings should be addressed to correct them.
Nor was the argument that Appellant now makes apparent from the context of
the forensic interviewer’s testimony. Nothing in the forensic interviewer’s testimony
3 See Tex. R. Evid. 412 (restricting admissibility of prior sexual behavior by victim in sexual assault cases).
11 communicated that she was a candidate to testify or be cross-examined about the
complainant’s psychiatric treatment history. The forensic interviewer had no
independent personal knowledge of the complainant’s psychiatric treatment. The
only thing that the forensic interviewer knew about the complainant’s background
before conducting the interviews came from a request form that had “about two
sentences about the -- about potential allegations and then about what -- one more
sentence about potential additional allegations.” Whatever the forensic interviewer
knew of the complainant’s psychiatric treatment history came from what the
complainant had said during the interviews. The jury heard exactly what the forensic
interviewer had heard about that history because the interviews were played in their
entirety for the jury.
Further, during her original cross-examination of the forensic interviewer,
Appellant’s counsel never attempted to elicit any testimony about the complainant’s
psychiatric treatment history or to tie the grooming process to her psychiatric history.
Though the forensic interviewer described grooming as requiring “unfettered access”
to a child, she made no reference to homeschooling as part of her answer.4
4 The forensic interviewer described the grooming process as follows:
Q. I want to talk to you a little bit about the dynamics of child sexual abuse. Is there a term in your profession that’s used called “grooming”?
A. Yes.
Q. What’s that mean?
12 Appellant’s counsel did ask a question about homeschooling in regard to the forensic
interviewer’s testimony about grooming. But that question had nothing to do with
the complainant’s psychiatric treatment history, and the interviewer agreed with the
premise of the question:
Q. (BY [DEFENSE COUNSEL]) So, reason to home-school could either be environmental grooming like you testified to or it could be like [the complainant] said and she was being bullied at school and getting in trouble at school, yes?
A. It could be, yes.
We do not see how what was said during the offer of proof gave the trial court
any inkling that it was error to deny a cross-examination of the forensic interviewer on
the complainant’s psychiatric treatment history when (1) the trial court was not told
that Appellant had wanted to examine this particular witness on the topic; (2) the trial
court was not told how the lack of that examination had impaired Appellant’s defense
when the forensic interviewer had no independent knowledge of that history and
when all that she knew about that history had been shared with the jury; (3) no
questions were asked during the original cross-examination of the forensic interviewer
A. So grooming is the unfettered access a person has to have to commit this type of crime. Grooming starts with the environment. The environment is the protective caregiver, the other siblings, the coaches, the teachers, anyone [who is] around the child. When a perpetrator starts with the environment, it’s to reduce the probability that [he is] going to get caught or that when the child reports, that [she] will be believed. And so the grooming process starts before -- on those peripherals, right, and those -- those family dynamics or in those schools or churches.
13 about the history; and (4) the forensic interviewer had agreed on cross-examination
that homeschooling the complainant could have had a legitimate purpose. If viewed
as the erroneous admission of evidence, the trial court was never told what additional
evidence the forensic interviewer had to offer. If viewed as a restriction on cross-
examination, the trial court was never told how the questions would impact the
forensic interviewer’s credibility, why the questions were vital when not asked during
the original cross-examination, or why the question that was asked did not fulfill
Appellant’s need to challenge the forensic interviewer’s credibility.
B. Even if Appellant had preserved his argument, we would hold that the trial court did not prevent him from presenting a full and vital defense.
At trial, Appellant generally premised his argument on the contention that
without knowing the full extent of the complainant’s psychiatric treatment history, the
jury was left with the impression that she was a child without mental or behavioral
issues. On appeal, Appellant’s argument turns on the contention that without the
ability to cross-examine the forensic interviewer on the complainant’s psychiatric
treatment history, the jury was left with a misimpression of why Appellant had
suggested that she be homeschooled.
But, as we will amplify, an appellant’s ability to conceive a hypothetical
justification for the questions that he wants to ask on cross-examination does not
deprive the trial court of the discretion to restrict cross-examination. The trial court
has many justifications that it can rely on to restrict cross-examination, and an
14 appellant has no grounds to complain if he can still present a vital defense even with
the restrictions in place.
Here, the trial court did not abuse its discretion by not permitting a fuller
description of the types of psychiatric treatment that the complainant had received or
by precluding Appellant from cross-examining the forensic interviewer on the topic.
The trial court pointed out that the cross-examination and the evidence that it would
introduce would be repetitive of what was already in the record. Though perhaps not
to the degree desired by Appellant, the record contains numerous references to the
complainant’s psychiatric treatment and hardly left the impression that the
complainant was untroubled. Indeed, the record contained enough evidence that
Appellant’s counsel made the very argument in closing that—assuming Appellant’s
appellate arguments were correct—would have been impermissible given the trial
court’s restrictions.
With respect to Appellant’s argument on appeal, his counsel never even
attempted to cross-examine the forensic interviewer on the topic that he now
contends was so vital to his defense. He never explained to the trial court and never
explains to this court how the topic of the cross-examination is more than marginally
relevant. Nor does Appellant explain the viability of cross-examining the forensic
interviewer on this topic because her knowledge of the complainant’s psychiatric
treatment history was limited to what the complainant had told her during the
interviews and the entire recordings of those interviews were played for the jury. And
15 the conclusion that the topic would be only marginally relevant is supported by the
fact that the topic was not raised with the forensic interviewer during her original
cross-examination. Finally, Appellant does not explain how the inability to cross-
examine the forensic interviewer impaired his defense when he was asked about the
decision to homeschool the complainant and his answer did not include her
psychiatric treatment history—another fact highlighted by the trial court while it was
trying to understand Appellant’s complaint during the offer of proof.
1. Standard of review and the law applicable to limits on cross- examination
A trial court’s determination to exclude evidence is reviewed under an abuse-
of-discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).
Specifically,
[a] trial [court] abuses [its] discretion when [its] decision falls outside the zone of reasonable disagreement. If the trial court’s evidentiary ruling is correct under any applicable theory of law, it will not be disturbed even if the trial court gave a wrong or insufficient reason for the ruling.
Id. (footnotes omitted).
In the specific arena of limitations on the scope of cross-examination, the trial
court also has the discretion to restrict the scope of the examination:
We recognize, however, that the right to cross-examine is not unqualified. A trial judge may limit the scope and extent of cross- examination, so long as those limits do not operate to infringe upon the Confrontation Clause’s guarantee of “an opportunity for effective cross- examination.” The defendant is not entitled to “cross-examination that is effective in whatever way, and to whatever extent,” he might wish. Trial judges retain “wide latitude” under the Confrontation Clause to
16 impose restrictions on cross-examination based on such criteria as “harassment, prejudice, confusion of the issues, the witness’s safety, or interrogation that is repetitive or only marginally relevant.” However, although the defendant does not have an absolute right to impeach the general credibility of a witness, the Constitution could be offended if a state evidentiary rule prohibited the defendant from cross-examining a witness concerning possible motives, biases, and prejudices to such an extent he could not present a vital defensive theory.
Id. at 909–10.
2. The record contains numerous references to psychiatric treatment received by the complainant and the state of her mental health.
Appellant argued at trial that by not being able to delve into the specific nature
of the complainant’s psychiatric treatment, the jury was left with a misimpression that
she was a normal child. On appeal, the argument pivots and crystalizes into an
argument that without evidence of the complainant’s psychiatric history, the jury was
left with a different misimpression—that Appellant did not have a legitimate reason to
homeschool the complainant:
The trial court’s denial of Appellant’s ability to cross-examine [the forensic interviewer] denied the jurors the only opportunity to hear critical behavioral testimony regarding Complainant. A review of the record establishes that no other testimony was offered to support the legitimate reasons to pull Complainant out of school. The jurors were left with the impression that pulling Complainant from school was part of Appellant’s plan for sexual abuse. [Emphasis added.]
The record, however, is replete with negative information about the
complainant and references to her psychiatric treatment.
17 a. References to psychiatric treatment
During the second forensic interview, the complainant told the forensic
interviewer that her biological father called her a “crazy psychopathic girl.” Then, the
complainant indicated that she was “a little bit crazy.” Next, she told the forensic
interviewer that she had threatened her biological father and his wife “out of pure
anger” and that they had sent her to the “mental ward.” The complainant recalled the
“mental ward” fondly because it was “the best time” that she had ever experienced at
a hospital. She could not remember the specific year of treatment. The complainant
testified that after she had been in the “mental ward,” she went to a special school for
people who do drugs and have other problems and was told by a counselor that she
was homicidal, willing to kill, and suicidal. She then stated that “[she] had done self-
harm because [she] wanted out of [her] world.”
The complainant testified that certain events had occurred “when [she] got out
of that outpatient treatment.” The complainant also stated that “[p]eople ha[d] tried
putting [her] through counseling so many times that [she had] just pushed it aside.”
During Appellant’s testimony, he testified about treatment that the complainant had
received, stating that “this was after the fact that [the complainant had] already [gone]
to Sundance [for] a six-week program for a child that had been abused.”
Part of the medical history collected by a nurse who had examined the
complainant quotes her statement, “Well when I got out of Sundance in like February
or March of 2016 . . . .” Another medical history has the following entries:
18 Medication denies
Major Illnesses psychiatric care 2015 – no meds since
Yet another medical history states that the complainant “has been treated for mental
health problems.” The same medical history has numerous entries stating that “while
living [with] father/stepmom [the complainant] was on [Z]oloft and [A]bilify.”
b. The complainant’s description of herself
At trial, the complainant offered the following descriptions of herself and her behavior:
• She has had a very rough childhood.
• A fight with her mother caused her to be sent to live with her biological father.
• Her father has found a way to keep her out of his life.
• She described why she had moved back to Texas after living with her father in Wisconsin as follows:
Q. Basically when you moved down here, it was because your dad kicked you out, right?
A. Yeah.
Q. And -- but prior to you[r] moving down here -- well, I mean, he kicked you out because he was scared for [your brother], didn’t he?
A. No, he didn’t care about my brother. He was apparently terrified for the safety of his wife and the soon-to-be-born baby because I was apparently too much of a psycho, too crazy to be living in the house, and that I should be put in a psycho ward and be drugged up to the point where I can’t move.
19 Q. Put in a psycho ward and drugged up to where you can’t move?
• She had lied when she had said that her grandfather had attempted to have sex with her.
• She testified that while she was being assaulted, she liked being slightly choked because she likes pain and is “into that.”
• She “lied a lot” to protect herself when she was younger.
• Her life was a “train wreck.”
• She stated that in the past she had “lied more than [she had] told [the] truth.”
A great deal of testimony centered around “urges” allegedly felt by the
complainant and how Appellant had purported to help the complainant deal with
these urges. But the officer investigating the matter reported that these urges included
violent ones:
Q. Okay. And your investigation has revealed violent urges, right?
A. There was information about violent urges that was not from [the complainant].
Others testified that the complainant had been violent to other children:
Q. . . . Okay. And did you ever have any reason to consider [the complainant] to be a kid with a temper or -- or in any way violent toward other kids?
A. Yes, I have witnessed it at my house.
20 3. The argument Appellant’s trial counsel made based on the existing record
After the trial court made the ruling that is the focus of this appeal, Appellant’s
counsel was able to make the following argument from the information that was
already part of the record:
Look at the medical records. Psychiatric treatment in Wisconsin. And [the complainant] talked to you about that or talked to [the forensic interviewer] about that in her forensic interview. She was hospitalized for violent urges, for being violent. [The complainant] told you, both on the witness stand and in her interview, her dad said she was a crazy psychopath who needed to be medicated until she couldn’t move.
[The complainant’s mother] takes the stand and tells you, no, she’s a normal child, no different than any other child. But did she have trouble? No, no more trouble than anybody else.
She was placed in a psychiatric unit in Wisconsin by her father and stepmother. She was placed in a psychiatric unit less than a year later here in Fort Worth by [her mother].
4. The trial court acted within its discretion and did not deprive Appellant of the opportunity to present a vital defense.
As the Austin court recently held, the scope of cross-examination is not
unilaterally controlled by the defendant, and the trial court has the discretion to
determine what level of examination will permit a defendant to muster the evidence
needed to make a defensive argument:
The Confrontation Clause does not guarantee cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Delaware v.] Van Arsdall, 475 U.S. [673,] 679[, 106 S. Ct. 1431, 1435 (1986)]; see Johnson, 490 S.W.3d at 910 (noting that Confrontation Clause does not provide defendant “an absolute right to impeach the general credibility of a witness”); Hammer v. State, 296 S.W.3d 555, 562–
21 63 (Tex. Crim. App. 2009) (same). The test to determine the scope of cross-examination demanded by the Confrontation Clause is whether the defendant could present a vital defense theory without the evidence, not whether the defensive theory is as strong as it could be with the evidence. See Johnson, 433 S.W.3d at 557 (“[A] ‘less than optimal’ opportunity for cross-examination does not, of itself, violate the Sixth Amendment.”). As long as the judge permits sufficient cross- examination to satisfy the Sixth Amendment, the trial judge has the ability to restrict the scope of cross-examination. Id. at 551–52.
Faglie v. State, No. 03-17-00281-CR, 2019 WL 847812, at *4 (Tex. App.—Austin Feb.
22, 2019, no pet.) (mem. op., not designated for publication); see also Irby v. State, 327
S.W.3d 138, 145 (Tex. Crim. App. 2010) (quoting Van Arsdall, 475 U.S. at 679, 106
S. Ct. at 1435, and stating that defendant lacks the right to “cross-examination . . . in
whatever way, and to whatever extent, the defense might wish”). As we noted when
discussing the standard of review, the trial court has the discretion to restrict cross-
examination to address a concern for “harassment, prejudice, confusion of the issues,
the witness’s safety, or interrogation that is repetitive or only marginally relevant.”
Johnson, 490 S.W.3d at 910 (quoting Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435).
Appellant understandably wanted every negative fact that he could muster to
attack the complainant, but that desire did not force the trial court to forfeit control
of the proceedings. We see numerous reasons why the trial court had the discretion
to restrict Appellant from further delving into the complainant’s psychiatric treatment
history and to decide that Appellant was not deprived of presenting a vital defense by
the ruling.
22 First, the testimony was repetitive. Even if we do not hold Appellant to the
argument he made in his brief and allow him to rely on the more general argument
made during the offer of proof, we still fail to see how Appellant was impaired in
presenting his defense. Even without clarification of the nature of the institutions in
which the complainant received psychiatric treatment, the record contained abundant
evidence that the complainant was troubled and had received psychiatric treatment.
Indeed, the trial court specifically noted that evidence of psychiatric treatment
was already in evidence through the medical records. And Appellant’s trial counsel’s
response to that observation was not that the medical records lacked the information
but that the jury should know more details about the treatment because “unless my
jurors know what Sundance is, they’re -- they’re not going to get the full picture as far
as why she was there. And again, the -- the impression that’s been left by [the
complainant’s mother] is that she’s just a normal girl, no problems.” It was a matter
for the trial court to decide how much mention should be made of the peripheral
issue that was already before the jury.
Also, the premise—unless the jury was told “what Sundance is,” they would be
left with the impression that the complainant was “just a normal girl”—is unfounded.
The jury knew that the complainant had received psychiatric treatment; after all, the
complainant’s description of herself conveyed many of her troubles.5
5 Appellant’s attempt to use the complainant’s psychiatric treatment history was also of dubious relevance from a legal standpoint.
23 First, the attempt to impeach the complainant’s mother on this issue involved a collateral issue. The degree to which the complainant was “normal” was not directly relevant to the offense charged. As such, the trial court had the discretion to limit or stop the examination on the issue. Specifically,
[e]vidence that is otherwise inadmissible may become admissible when a party opens the door to such evidence. A party opens the door by leaving a false impression with the jury that invites the other side to respond. But even if a party opens the door to rebuttal evidence, the trial judge still has the discretion to exclude the evidence under Rule 403. Courts generally prohibit a party from using extrinsic evidence to impeach a witness on a collateral issue. An issue is collateral if, beyond its impeachment value, a party would not “be entitled to prove it as a part of his case tending to establish his plea.” Unless the witness’s testimony created a false impression that is “directly relevant to the offense charged,” allowing a party to delve into the issue beyond the limits of cross[-]examination wastes time and confuses the issues.
Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009) (footnotes omitted).
Second, evidence of mental treatment is usually not admissible under Texas Rule of Evidence 608(b) unless it has a direct bearing on a witness’s credibility. See Haynes v. State, No. 07-15-00369-CR, 2016 WL 6471346, at *6 (Tex. App.—Amarillo Oct. 31, 2016, pet. ref’d) (mem. op., not designated for publication) (“Rule 608(b) prohibits the introduction . . . of specific instances of conduct to attack a witness’s credibility. Tex. R. Evid. 608. Cases finding evidence of the mental capacity of a witness admissible as impeachment evidence . . . have required that the proponent show the . . . purported impairment or disability would affect the witness’s credibility.” (footnote omitted)); Scott v. State, 162 S.W.3d 397, 401–02 (Tex. App.— Beaumont 2005, pet. ref’d) (holding that trial court did not abuse its discretion by excluding evidence that showed witness’s condition—which involved a history of repeated admissions to mental hospitals and medication—was ongoing because no evidence proved that his condition affected his credibility regarding the events to which he testified); see also Brooks v. State, No. 01-18-00175-CR, 2019 WL 4620994, at *6–7 (Tex. App.—Houston [1st Dist.] Sept. 24, 2019, pet. filed) (stating that Texas Rule of Evidence 611 permits cross-examination of witness on relevant matters and “[c]ross-examination of a testifying State’s witness to show that the witness has suffered a recent mental illness or disturbance is proper, provided that such mental illness or disturbance is such that it might tend to reflect upon the witness’s credibility.” (quoting Virts v. State, 739 S.W.2d 25, 30 (Tex. Crim. App. 1987) (emphasis added))). Here, Appellant
24 In considering the repetitiveness and the marginal relevance of the evidence,
the trial court also had the right to balance the need to recall witnesses to delve into
the complainant’s psychiatric treatment history and to further extend the trial with the
fact that adequate evidence of the complainant’s psychiatric treatment history was in
the record.
Finally, Appellant’s counsel’s argument to the jury confirmed that the record
already contained enough evidence to make the argument that counsel had contended
was so vital. Thus, from a practical standpoint, the inability to cross-examine the
forensic interviewer did not hinder counsel from presenting the desired argument.
And holding Appellant to the argument he makes in his brief, we do not
understand how raising the topic with the forensic interviewer was of anything more
than marginal relevance. For all the reasons we have articulated above, the forensic
interviewer knew nothing about the complainant’s psychiatric treatment history other
than what she was told during the interviews that were played for the jury. The trial
court could have concluded that even Appellant did not see the line of questioning as
vital when the original cross-examination of the forensic interviewer did not include a
did not argue that the complainant’s psychiatric treatment history impacted her credibility. The trial judge could have questioned the effort to introduce the complainant’s psychiatric treatment history via impeachment of the mother as a means to backdoor evidence that would not be admissible through the front door because it was not a proper attack on the complainant’s credibility. This consideration also supports the trial court’s decision to restrict cross-examination on the psychiatric treatment history.
25 question on the topic. That omission in and of itself belies that it was a vital topic
that Appellant needed to address with the forensic interviewer.
Even if the trial court had been presented with the argument that Appellant
makes on appeal, another aspect of the record demonstrates that the premise of why
the line of cross-examination was so vital is unfounded. Without the psychiatric
treatment evidence, Appellant argues that the jury was left without a challenge to the
implication from the forensic interviewer’s testimony that homeschooling was a part
of the grooming process that gave Appellant unfettered access to the complainant.6
6 Specifically, Appellant argues,
By denying Appellant the opportunity to cross-examine [the forensic interviewer], Appellant was unable to offer powerful evidence to clarify Complainant’s background that would support taking Complainant out of public school to be home schooled for reasons other than creating an atmosphere for a compliant sexual abuse victim. Without the ability to fully cross-examine [the forensic interviewer], Appellant was denied [the opportunity] to offer the jurors a complete picture of Complainant’s history of violent behavior. As his offer of proof indicates, Complainant attempted to smother her brother and was placed in a psychiatric hospital. This probative, relevant evidence was not placed in front of the jurors.
Further, Appellant was not allowed to clarify that Complainant had recently been in a psychiatric hospital, Sundance, in Fort Worth. . . . The inability to be afforded his Constitutional Due Process rights to Confrontation left the jurors with an impression that Complainant had insignificant problems. The trial court’s denial to allow Appellant the opportunity to cross-examine [the forensic interviewer] and rebut this impression that he only wanted to home school her to groom her to be a victim was an egregious error.
26 This argument has a massive hole because Appellant had the opportunity to explain
why he had suggested homeschooling for the complainant and that explanation did
not include her psychiatric treatment history or her allegedly aberrational behavior.
This disconnect demonstrates the marginal—at most—relevance of the topic that
Appellant now claims that he wanted to address in his cross-examination of the
forensic interviewer.
In the following exchange, Appellant had the opportunity to and did explain
why he had suggested that the complainant should be homeschooled, and his
explanation had nothing to do with her psychiatric treatment history:
Q. Where did [the complainant] go to school?
A. She started the school year in [the name of the school is omitted to protect the complainant’s privacy]. Same problems that she had, same issues going on. Getting caught in class with boys, talking to them, getting into arguments with teachers. You know, what would be considered, I guess, normal female behavior at that age, I guess.
Q. And what did you and [the complainant’s mother] do as parents in regards to those issues?
A. We discussed home-schooling because I was personally home- schooled for similar issues with, you know, teachers not understanding certain things or me not understanding what they were trying to present
This characterization failed to show the complete background of Complainant’s story; therefore, the jurors were not afforded an opportunity to hear any testimony by the defense that Complainant could have been pulled out of public school because of previous violence issues that made home schooling a legitimate, viable alternative to public school. Instead, the jurors were presented evidence without rebuttal or clarification that Appellant’s home school plan was part of his method to make her a compliant victim.
27 to me. The expectations of school is a little different for people that don’t quite understand the dynamic, how it’s supposed to be. So I discussed -- well, I kind of put forward, I said, well, what about home- school.
Q. So home-school was your idea, correct?
A. My idea, but I had no control whether it would happen or not.
Q. And that was your idea based on personal -- on your personal experience with the home-schooling, correct?
A. Yes, ma’am.
Q. Was it your idea so that you could isolate and sexually assault [the complainant]?
A. No, ma’am.
The trial court’s questioning of counsel during the offer of proof highlighted
that Appellant had given his explanation for why he had suggested homeschooling the
complainant. At the time Appellant’s counsel made her offer of proof, the trial court
noted that Appellant had given his reasons for suggesting that the complainant be
homeschooled and had tried, without success, to determine the relevance of her
psychiatric treatment history:
THE COURT: Well, problems, how is a child’s mental problems relevant? How is that -- how [does] a child[’s] having mental problem[s] illustrate that what the mother said is --
[DEFENSE COUNSEL]: Well, . . . the State’s witnesses have indicated that it was Joshua Austin’s idea to pull [the complainant] out of public school.
THE COURT: Well, it was, he said it was.
28 [DEFENSE COUNSEL]: And the impression that the State has elicited is that he’s done this in an attempt to isolate her. [The forensic interviewer] --
THE COURT: I understand. I understand what they’re saying. And your testimony was because she was having problems with school and boys at school and kids at school. So, the fact that she went to Sundance, how does that -- I don’t understand -- I’m trying to understand how that is admissible.
[DEFENSE COUNSEL]: But certainly to rebut the impression that -- left by [the complainant’s mother] that she’s just a normal child. And then also again, it’s --
THE COURT: So a normal child doesn’t have mental problems? I don’t understand that argument. Is that what you’re saying?
[DEFENSE COUNSEL]: No. [Emphasis added.]
Appellant’s argument on appeal does not acknowledge or address how he was
deprived of the opportunity to present a vital defense that hinges on the argument
that the complainant’s psychiatric treatment history prompted her homeschooling
when the reasons he offered for suggesting that course of action were not based on
that history.
At the end of the day, the trial court acted within the zone of its discretion.
The trial court had legitimate concerns about prolonging the trial to revisit a topic that
had already been adequately addressed in the record. The questioning of the forensic
interviewer about the complainant’s psychiatric treatment history of which she had no
independent knowledge appears of marginal relevance, both from a legal standpoint
and practically, because the question was not asked when Appellant originally had the
29 opportunity to do so. And finally, the argument on why the cross-examination was so
vital was belied by Appellant’s own testimony. Accordingly, we overrule Appellant’s
sole point.
IV. Conclusion
Having overruled Appellant’s sole point, we affirm the trial court’s judgment.
/s/ Dabney Bassel
Dabney Bassel Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: November 21, 2019