Kennedy v. State

184 S.W.3d 309, 2005 WL 3297989
CourtCourt of Appeals of Texas
DecidedJanuary 11, 2006
Docket06-04-00159-CR
StatusPublished
Cited by15 cases

This text of 184 S.W.3d 309 (Kennedy v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kennedy v. State, 184 S.W.3d 309, 2005 WL 3297989 (Tex. Ct. App. 2006).

Opinions

OPINION

Opinion by

Justice ROSS.

Cannon Kennedy was indicted on one count of indecency with a child by exposure, four counts of indecency with a child by contact, and four counts of aggravated sexual assault of a child. He entered pleas of not guilty before a jury on all counts. The jury returned verdicts of guilty on all nine counts and assessed punishment at twelve years’ imprisonment for each of the five counts of indecency with a child, sixty years’ imprisonment for two of the aggravated sexual assault convictions, and ninety-nine years’ imprisonment for the other two aggravated sexual assault convictions. The trial court sentenced Kennedy accordingly, ordering that the nine sentences run concurrently. Kennedy now appeals the trial court’s judgment, contending the trial court abused its discretion in excluding evidence of specific instances of the complainant’s past sexual behavior and in excluding hearsay concerning what the complainant had said to her friends about needing to testify to the same stories in court. We affirm.

I. Factual Background

A. A.C.’s Account

In 1999, thirty-one-year-old Kennedy moved in with the family of eleven-year-old A.C. in Bowie .County, According to A.C., a couple of months after he moved in, Kennedy began to come into her room at night and sexually abuse her. The abuse began with back rubs under her shirt during which he would move to her front, fondling her breasts. He then began to “mess[ ] with [her] privates,” digitally penetrating her. A.C.’s family moved to Georgia for a brief period and then returned to Bowie County. Kennedy moved back in with the family and began to masturbate in front of A.C. and would place her hand on his penis to masturbate him. Then the abuse progressed to oral sex and, finally, intercourse. A.C. testified Kennedy would ejaculate on her abdomen and clean her up with a towel. She testified the abuse was frequent over the years, progressing to three or four nights a week. She testified he did not say anything to her during the abuse. After he was done, he would kiss her on the forehead and tell A.C. that he loved her. Finally, A.C. told a friend, who persuaded A.C. to talk to the friend’s mother. The friend’s mother talked A.C. into discussing the abuse with a pastor and, later, disclosing the abuse to the police.

B. State’s Medical Testimony

The trial court admitted the testimony of nurse Becky Francis. She testified that, during her examination of A.C., she noted a well-healed laceration in A.C.’s hymen and that this well-healed tear was consistent with AC.’s account of abuse.

C. Kennedy’s Contentions

Kennedy complains of the trial court’s exclusion of certain evidence that, Kennedy argues, would rebut or explain the [312]*312State’s medical evidence. According to Kennedy, the trial court also excluded evidence that would demonstrate A.C. had a motive to fabricate the allegations of abuse. Kennedy relies on Rules 412 and 803(24) to support his positions. See Tex.R. Evid. 412, 803(24).

II. Exclusion of Evidence Concerning Past Sexual Activity

A. Standard of Review

We review a trial court’s decision to exclude evidence for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 378 (Tex.Crim.App.1990). A trial court abuses its discretion when its decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree. Shaw v. State, 122 S.W.3d 358, 363 (Tex.App.-Texarkana 2003, no pet.).

B. Evidence of Past Sexual Activity: Rule 412 Requirements

Rule 412 of the Rules of Evidence provides the following limitation on the admissibility of a victim’s past sexual conduct:

In a prosecution for sexual assault or aggravated sexual assault,1 or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;2
(2) it is evidence:
(A) that is necessary to rebut or explain scientific or medical evidence offered by the State;
(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;
(C) that relates to the motive or bias of the alleged victim;
(D)is admissible under Rule 609;3 or
[313]*313(E) that is constitutionally required to be admitted; and
(3) its probative value outweighs the danger of unfair prejudice.

Tex.R. Evid. 412(b). Kennedy’s contentions focus on subsections (2)(A) and (2)(C), so we will concentrate our discussion on those subsections.

C. Evidence of Thirty-Three Sexual Partners

Kennedy contends the trial court abused its discretion by excluding the following testimony from Raschella Lamp-kins, a former friend of A.C.: “And [A.C.] just — I said, what about you, and she said, well, I lost [my virginity] when I was thirteen, and I’ve had sex with thirty-three guys. That’s what she told me.” Lamp-kins testified A.C. did not specify a time frame during which she had these thirty-three partners. A.C. denied ever having made these statements to Lampkins.

1. Kennedy’s Argument

Kennedy contends this testimony would rebut or explain the State’s medical testimony from Francis that the well-healed tears in A.C.’s hymen are consistent with abuse. Kennedy relies on this Court’s decision in Reynolds v. State, 890 S.W.2d 156 (Tex.App.-Texarkana 1994, no pet.), to support his contention the trial court abused its discretion by excluding such evidence. In Reynolds, the state introduced medical evidence that the victim’s vaginal opening appeared to be slightly stretched. Id. at 157. The state’s medical report also included the victim’s denial of any other sexual abuse or consensual sexual activity. Id. Employing Rule 412, Reynolds sought to question the complainant regarding three prior sexual partners and to introduce a letter from the complainant to her grandmother documenting years of sexual abuse by another man. Id. Reynolds argued that this evidence would rebut or explain the state’s medical evidence supporting the victim’s allegations. Id.

Concluding that the excluded evidence would explain the state’s evidence of vaginal trauma and would rebut the complainant’s denial of any prior sexual abuse or activity, this Court held that the trial court did abuse its discretion by excluding this evidence under Rule 412 and that the error was not harmless. See id. at 157-58. This Court reversed the conviction and remanded the case for a new trial. Id. at 158.

Further, in Hood v. State,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Andrew Thomas Vidal v. the State of Texas
Court of Appeals of Texas, 2026
Jerad Lee Reamy v. the State of Texas
Court of Appeals of Texas, 2024
Jereme Lee Escobedo v. State
Court of Appeals of Texas, 2019
Alford v. State
495 S.W.3d 63 (Court of Appeals of Texas, 2016)
Phillips, Christopher Allen
463 S.W.3d 59 (Court of Criminal Appeals of Texas, 2015)
Gregory Lamar Young v. State
382 S.W.3d 414 (Court of Appeals of Texas, 2012)
Jeremy Allen Landers v. State
Court of Appeals of Texas, 2011
Alvin Earl Murphy v. State
Court of Appeals of Texas, 2008
Jimmy Lynn Franklin v. State
Court of Appeals of Texas, 2008
Alondra Deantia Reagan v. State
Court of Appeals of Texas, 2007
in Re Lillian Beatrice Shipmon, Relator
Court of Appeals of Texas, 2001

Cite This Page — Counsel Stack

Bluebook (online)
184 S.W.3d 309, 2005 WL 3297989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-state-texapp-2006.