Michael Wayne Kelly v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: July 14, 2021
• Docket: 09-19-00197-CR
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-19-00197-CR __________________

MICHAEL WAYNE KELLY, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 17-10-12451-CR __________________________________________________________________

MEMORANDUM OPINION

Following a jury trial, which resulted in his conviction for continuous sexual

abuse of children, Michael Wayne Kelly appealed.1 On appeal, Kelly argues that

various rulings by the trial court excluding evidence he wanted to develop on cross-

examination violated his constitutional right to confront the witnesses who testified

against him. But the record does not show the rulings Kelly challenges significantly

1 Tex. Penal Code Ann. § 21.02. 1 undermined his ability to develop evidence supporting his theory that the witnesses

who testified were lying about what they said he did.2 Because the trial court did not

violate Kelly’s rights under the Sixth Amendment by excluding the evidence he

complains about in his brief, we will affirm.

Background

To simplify the opinion, we limit our discussion of the evidence to the parts

we need to explain our resolution of the arguments Kelly included in his brief. The

testimony in the trial shows Selena and Kendall are Kelly’s daughters.3 Sam is

Selena’s mother. Kristen is Kendall’s mom. Selena and Kendall are the children the

State charged Kelly with molesting.

In Kelly’s sole issue, he argues the trial court excluded evidence he should

have been allowed to develop to prove that Kristen, Sam, Selena, and Kendall had

motives or biases to testify against him in his trial. According to Kelly, the

restrictions the trial court placed on his attorney kept his attorney from proving

Kristen, Sam, Selena, and Kendall had motives that led them to lie about what they

claimed he had done to molest Selena and Kendall when he cared for each child.

2 U.S. CONST. amend. VI. 3 To protect the privacy of the children and their respective families, we have not identified the children or their mothers by using their real names. Instead, we will use Selena as a pseudonym for Kelly’s oldest daughter; Sam as a pseudonym for Selena’s mother; Kendall as a pseudonym for Kelly’s youngest daughter; and Kristen as a pseudonym for Kendall’s mother. 2 Kelly supports his brief with four basic arguments. First, he argues that, had he been

allowed to conduct more thorough cross-examinations, he could have developed

more evidence than he did to prove what the witnesses said about what he did to

Selena and Kendall was not true. Second, he argues that by conducting more

thorough examinations, he could have shown that in January 2014, Kendall acquired

knowledge about sex, including the acts she attributed to him, from several children

touching her in places on her body that he contends would have informed her

knowledge about sex. Third, Kelly claims that had he been allowed to prove Kendall

first experienced sexual contacts with these children, he could have shown Kendall

lied to her mother when, in October 2014, she told her mother no one had ever

touched her private parts. Fourth, Kelly argues that had he been allowed to develop

evidence about the conduct between Kendall and the children, he could have shown

the types of acts she engaged in with them were much like those Kendall, several

months later, attributed to him.

Shortly before the State called its first witness, Kelly explained he wanted to

introduce evidence about the sexually related encounters between Kendall and the

children she was living with in January 2014 to develop testimony about what

happened in those encounters given what Kelly described about them to a school

counselor shortly after the encounters occurred. The prosecutor responded that

Kelly’s summary of what the counselor described failed to describe sexually related

3 conduct that resembled the acts Kendall attributed to him. After considering the

arguments and reviewing the counselor’s report, the trial court ruled Kelly’s attorney

could “not [] go into any allegations of [Kendall’s] prior sexual abuse or sexual

conduct . . . at this time.”

When Kelly’s attorney later tried to develop evidence when questioning

witnesses about the encounters Kendall experienced with the children she was living

with in January 2014, the trial court sustained the State’s objections. The trial court

also sustained the State’s objections to questions Kelly’s attorney tried to ask Selena

to develop what Kendall told Selena about what the children she was living with did

to her in the encounters that occurred in January 2014.

Standard of Review

Under the Rules of Evidence, “[a] party may claim error in a ruling to admit

or exclude evidence only if the error affects a substantial right of the party and [the

error was properly preserved under the rules of error preservation for appeal].” 4 But

rulings excluding “evidence are unconstitutional only if they ‘significantly

undermine fundamental elements of the accused’s defense.’”5 Thus, to prevail on his

Confrontation Clause claim when the complaints address whether the trial court

unduly restricted the scope of a defendant’s cross-examination, we must decide (1)

Tex. R. Evid. 103(a). 4

Potier v. State, 68 S.W.3d 657, 666 (Tex. Crim. App. 2002) (quoting U.S. v. 5

Scheffer, 523 U.S. 303, 315 (1998)). 4 whether the trial court erred by excluding the evidence, and (2) whether the trial

court significantly undermined the defendant’s right to present his defense given all

the evidence admitted in the trial.6

Analysis

Kelly argues that by restricting his rights to conduct the cross he wanted, the

trial court significantly undermined the ability his attorney would have otherwise

enjoyed in proving that Selena and Kendall “had a motive and bias to make false

allegations against [him.]” For five reasons, we disagree.

First, the record shows the trial court allowed Kelly to prove that Selena and

Kendall each wanted Kendall to live with Kristen during and following the child

custody battle that had erupted involving Kendall’s parents. When Kelly’s attorney

cross-examined the witnesses who testified in Kelly’s trial, he established the

allegations against Kelly first came up in the context of a recently filed child custody

case between Kendall’s parents. For example, while cross-examining Kendall,

Kelly’s attorney developed that when Kendall was interviewed in October 2014 by

a forensic interviewer, Kristen told Kendall “the things that [she] needed to

remember to say[.]” The trial court also allowed Kelly’s attorney to cross-examine

witnesses about whether Selena had lied. On cross, Kelly’s attorney proved that

when Selena was first interviewed in November 2019 about claims of sexual abuse,

6 Scheffer, 523 U.S. at 315; Potier, 68 S.W.3d at 666. 5 she told the interviewer Kelly had never abused anyone. In Selena’s second

interview, which occurred in July 2016, Selena testified that what she told the

forensic interviewer during her first interview was a lie.7 While on cross, Kelly’s

attorney asked Selena to explain why she changed her account about what she

claimed Kelly had done. Selena testified she changed what she said because she had

feelings of guilt about her failure to protect Kendall given her role as Kendall’s big

sister. We conclude this evidence reflects the trial court did not prevent Kelly from

developing evidence to support his claims the witnesses had a motive to testify

against him in his trial.

Second, the record shows that Kelly called a neuropsychologist as an expert

witness. During his testimony, the expert explained why the incidence of false claims

of abuse increase when the claims arise against the backdrop of an impending suit

over the parent’s custodial rights. The neuropsychologist testified: “[A] sexual abuse

allegation in a child custody case is the back door to winning the case.” And he

testified, in cases where the dispute involves custody, the incidence of false claims

of sexual abuse soar to around fifty percent due to the risk that the child’s outcry

originated with the parent, not the child. Kelly’s expert explained that families that

are dysfunctional manipulate others to achieve their goals. He said “dysfunctional

7 In the first interview, which occurred in November 2014, Selena explained that she said Kelly “did nothing to [her] and that he was a good guy.” 6 famil[ies are] destructive and use destructive methodologies to achieve their evil

intentions.” Kelly then linked the expert’s testimony to other testimony he developed

through his cross to show that Selena and Kendall both were raised by mothers

presiding over dysfunctional homes. Kelly’s expert explained that dysfunctional

family dynamics increase the rate of false allegations. According to the

neuropsychologist, when the child is a teenager, (which the evidence revealed was

true in Selena’s case when the claims arose), the risk of false allegations

increase. The expert also testified that the risk of false claims increases when

children are required to undergo multiple interviews (like Selena) when there are

allegations that someone has been sexually abused. Thus, Kelly did develop

evidence to support his claims of bias.

Third, the questions Kelly’s attorney asked when he cross-examined the

witnesses demonstrate he developed testimony to show Selena and Kristen were

raised in homes by mothers who created a great deal of dysfunction within their

respective homes. For example, on cross, Sam testified she has six children, uses

drugs, and is an alcoholic. Sam explained that until 2012, she was employed by a

sexually oriented business. Kelly also established information on cross-examining

witnesses that shows Kristen also had used various illegal drugs that impaired her

memory. Kristen explained that at age fifteen, she was hospitalized and treated for

drug abuse. And while Kristen was living with her boyfriend, she was aware that

7 people were using drugs in the home. Kristen also described the circumstances that

led to her seeing an attorney so she could obtain court-ordered custody rights to keep

Kendall. Kristen agreed that Kelly had alleged she has mental health issues and uses

drugs in the case he filed, which he hoped would lead to establishing his right to

keep Kendall. And Kristen explained that in a custody battle she had with another

man over another child, that the case ended when her boyfriend was awarded

custody. This testimony shows the trial court did allow Kelly’s attorney to develop

evidence to support his defense.

Fourth, the trial court did not abuse its discretion by finding the evidence

Kelly’s attorney wanted to develop concerning the alleged sexually related

encounters between Kendall and some children was not relevant. The record shows

the types of acts involved in Kendall’s encounters with the children are not like the

ones she attributed to him. And even if the acts had some relevance, introducing

evidence that would reveal a sexual-assault victim’s prior sexual conduct is

generally inadmissible.8 While it’s true that Rule 412 making such evidence

generally inadmissible is not a rule that has no exceptions, including one that makes

such evidence relevant if it tends to show “the victim’s motive or bias[,]” we are not

persuaded the trial court abused its discretion when it refused to apply the exception

Tex. R. Evid. 412(a)(2) (making specific instances of a victim’s past sexual 8

behavior generally inadmissible in criminal trials). 8 to the evidence Kelly wanted to develop during his trial. 9 As to relevance, the record

does not show there is any similarity between the sexual acts Kendall described to a

school counselor in January 2014 and those Kendall attributed to Kelly. 10 And even

if Kendall’s encounters with those children are relevant to show motive or bias, Rule

412 allows trial courts to exclude evidence regarding a victim’s prior sexual behavior

if admitting the evidence is unduly prejudicial to the issues the jury must decide in

the trial.11 We conclude the trial court did not abuse its discretion by excluding the

evidence about Kendall’s encounters with the children both because it was not

relevant and because admitting it would have been unduly prejudicial.

Fifth, Kelly had the right to call—but did not—witnesses to express opinions

about Selena’s and Kendall’s reputations for telling the truth. Calling reputation

witnesses is the manner the Rules of Evidence allows parties to prove a witness is

lying.12 Even then, the parties may not ask reputation witnesses to testify about prior

specific instances of conduct. 13 We conclude the trial court did prevent Kelly from

developing evidence relevant to his defense that Selena’s and Kendall’s accusations

against him were false. 14

9 Id. 412 (b)(2)(C). 10 See Lopez v. State, 18 S.W.3d 220, 226 (Tex. Crim. App. 2000). 11 Tex. R. Evid. 412(b)(3). 12 Id. 608(a). 13 Id. 608(b). 14 While the school counselor’s report, which describes the types of conduct the children engaged in with Kendall, was never admitted into evidence in the trial, 9 To be sure, Kelly’s rights under the Sixth Amendment include the right “to be

confronted with the witnesses against him[.]” 15 The scope of that right is broad

enough that it requires trial courts to allow defendants to cross-examine witnesses

about matters that involve witness motive or bias.16 Here, Kelly elected not to call

any reputation witnesses in his trial. Additionally, the record demonstrates the trial

court allowed Kelly to develop evidence showing that Kristen, Sam, Selena, and

Kendall had reasons that might have led them to falsely accuse him of molesting

Selena and Kendall in order to help Kristen win custody of Kendall.

Boiling it down, the record shows the trial court did not allow Kelly’s attorney

to cross-examine witnesses on matters that related to Kendall’s sexual encounters

with others that he wanted to ask the witnesses about during his trial. But the Sixth

Amendment right to confront witnesses is not unqualified, so it does not require the

trial court to permit the defendant to cross-examine witnesses in every way he may

choose.17 Instead, the question we must answer is whether the restrictions placed on

the trial court marked the report to include it in the record for the purpose of appellate review of the court’s rulings excluding evidence about the encounters between Kendall and the children, encounters that occurred around January 2014. 15 U.S. CONST. amend. VI. 16 See Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). 17 See Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App. 2016) (noting that trial courts may limit the scope and extent of cross-examination designed to reveal the witness’s motive to testify falsely to a claim of molestation so long as those restrictions do not infringe on the Confrontation Clause’s guarantee permitting the defendant an effective cross); Tex. R. Evid. 412 (making evidence of previous 10 Kelly’s attorney kept Kelly from receiving “a fair opportunity to defend himself” in

his trial.18 We conclude the answer to that question is no. We come to that conclusion

even though we recognize a witness’s motivation to testify against someone is

particularly important to the defendant’s right to present evidence, given the

factfinder role in deciding what evidence it should believe at trial.19 Even so, trial

courts retain “wide latitude to impose reasonable limits on such cross examination

without violating the Confrontation Clause.” 20 On this record, the trial court allowed

Kelly to effectively cross-examine witnesses even though it created reasonable

restrictions to enforce the Rules.21

Conclusion

We conclude Kelly has not established he was deprived of the right to

effectively cross-examine the witnesses who testified against him at trial. For that

reason, the trial court’s judgment is

sexual conduct inadmissible in criminal cases that involve the prosecution of the defendant for sexual assault absent exceptions that do not apply to Kelly). 18 Scheffer, 523 U.S. at 316. 19 See Tucker v. State, 771 S.W.2d 523, 531 (Tex. Crim. App. 1988). 20 Id. (citing Delaware v. Van Arsdale, 475 U.S. 673, 679 (1986)). 21 Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original). 11 AFFIRMED.

_________________________ HOLLIS HORTON Justice

Submitted on May 12, 2021 Opinion Delivered July 14, 2021 Do Not Publish

Before Golemon, C.J., Horton and Johnson, JJ.