Steven Earl Davis v. Mellissia Davis

• Court: Court of Appeals of Texas
• Decided: June 1, 2007
• Docket: 06-07-00059-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-07-00059-CV ______________________________

STEVEN EARL DAVIS, Appellant

V.

MELLISSIA DAVIS, Appellee

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On Appeal from the Sixth Judicial District Court Red River County, Texas Trial Court No. CV01275

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Before Morriss, C.J., Carter and Moseley, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Steven Earl Davis filed a notice of appeal April 11, 2007, from a protective order granted by the trial court October 10, 2006. Citing Tex. Fam. Code Ann. § 81.009(b), (c) (Vernon Supp. 2006), he states that the protective order did not become final until a final divorce decree had been entered and states that decree was entered March 12, 2007.

In our review of the clerk's record, we noted, however, that there were two separate cause numbers for the divorce proceeding (trial number CV01300) and the protective order (trial number CV01275). Section 81.009, in pertinent part, reads as follows:

(b) A protective order rendered against a party in a suit for dissolution of a marriage may not be appealed until the time the final decree of dissolution of the marriage becomes a final, appealable order.

(c) A protective order rendered against a party in a suit affecting the parent-child relationship may not be appealed until the time an order providing for support of the child or possession of or access to the child becomes a final, appealable order.

Due to the fact that the protective order was apparently not part of the original divorce proceeding pursuant to Section 81.009, the notice of appeal from that order was untimely.

On April 26, 2007, we mailed a letter to counsel for appellant detailing the apparent defect in the notice of appeal and informing counsel that, if he did not show this Court how we had jurisdiction within ten days of the date of the letter, we would dismiss the appeal for want of jurisdiction.

We have received no response. Therefore, we dismiss the appeal. See Tex. R. App. P. 42.3.

Josh R. Morriss, III

Chief Justice

Date Submitted: May 31, 2007

Date Decided: June 1, 2007

et with E.G.B. and compelled her to return to Crystal's house to apologize to Crystal and her parents. The State objected to the line of questioning as irrelevant. The trial court removed the jury and the trial court allowed argument regarding the admissibility of the entire line of questioning. At this time, Blanchard announced that he had no intention of inquiring about the sexual conduct of E.G.B. that night, but went on to maintain that E.G.B. had misbehaved, was corrected by her father, and was angry at her father as a result. He further argued to the court that:

All this goes to the issue of credibility of the witness, as well as possible motive for her being angry with her father, and acting out in retribution against him. It is also consistent, Your Honor, with her father's conduct. If he were merely seeking a sexual favor, I doubt that he would really care as to whether or not she ran away or did anything else.

Upon inquiry of the trial court as to the proximity in time of this incident to the outcry made by E.G.B., Blanchard replied that it had been within a twelve-month period prior to the outcry. The trial court then announced that the incident was "too remote to have it overcome the restriction of Rule 608" and that "the Court is not going to allow for you to go into any misconduct of this witness that is not a conviction or anything that's allowed under Rule 608 unless you can show me a legal reason for it." Blanchard responded, "The only legal reason, Your Honor, would be to demonstrate on the part of the witness to make false allegations as well as to -- it would go to the issue of the witness' credibility given the circumstances in this case."

Rule 608(b) of the Texas Rules of Evidence states, "Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence." Tex. R. Evid. 608(b).

In Blanchard's brief, he indicates that the reason for his attempt to introduce evidence of the incident was not for the purpose of impugning the integrity of the witness but, rather, to show that E.G.B., smarting from the disciplinary actions taken by her father after the incident, concocted a fabricated claim of sexual abuse in retribution.

Looking at the pure wording of Rule 608(b) and the final "legal reason" given to the trial court by Blanchard as the basis for introduction of evidence of the incident (i.e., that it goes to the credibility of the witness), evidence of the incident for the purpose given would be subject to exclusion.

Although remoteness in time is a concept more closely related to Rule 609 of the Texas Rules of Evidence (which pertains to evidence of criminal convictions) than it is to Rule 608, there is also some rationale for the trial court to have looked at the proximity in time between the incident which Blanchard was attempting to illuminate and the later action of E.G.B. in making her outcry. Rule 403 of the Texas Rules of Evidence provides, "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." Tex. R. Evid. 403. The trial court could weigh the probative value of the evidence which was being proffered against the potential for prejudice and confusion which it might present.

Whether evidence should be admitted is within the sound discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g). Therefore, the standard of review for admission or exclusion of evidence is abuse of discretion. Erdman v. State, 861 S.W.2d 890, 893 (Tex. Crim. App. 1993); see also Winegarner v. State, No. PD-0807-06, 2007 Tex. Crim. App. LEXIS 1383 (Tex. Crim. App. Oct. 10, 2007). A trial court does not abuse its discretion unless it has "acted arbitrarily and unreasonably, without reference to any guiding rules and principles." Breeding v. State, 809 S.W.2d 661, 663 (Tex. App.--Amarillo 1991, pet. ref'd). As long as the trial court's ruling remains within the "zone of reasonable disagreement," there is no abuse of discretion and the trial court's ruling will be upheld. See Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996).

The decision of the trial court to exclude the evidence was within the zone of reasonable disagreement and, thus, within the proper discretion of the trial court. Accordingly, we overrule this point of error.

EXPERT TESTIMONY REGARDING GENERAL CHARACTERISTICS OF SEX OFFENDERS

Blanchard complains of the actions of the trial court in permitting the testimony of Ed Waggoner, a psychologist, who is a licensed sex offender treatment provider. Although Waggoner testified at both the guilt/innocence and the punishment phases, the objection to his testimony appears to be limited to that at the guilt/innocence phase.

After Waggoner and his qualifications had been identified, Blanchard objected to the relevance of Waggoner's testimony at the guilt/innocence phase of the trial, stating his belief that Blanchard had not, at that phase, yet been determined to be a sex offender. The trial court placed limitations on the extent of Waggoner's testimony and allowed him to testify otherwise.

Blanchard maintains that the testimony of Waggoner regarding "grooming" of a child sex abuse victim is redundant of what is knowledge common to jurors in everyday life and, therefore, not relevant to the trial. However, Waggoner does testify that many activities which are common between parent and child can be contorted and controlled by a sex offender to achieve the offender's aims. Blanchard further asserts that because E.G.B. had already testified that Blanchard had offered her gifts and privileges in exchange for sexual favors, Waggoner's testimony that the granting of gifts and privileges was redundant and irrelevant. Blanchard posits that Waggoner's testimony that Blanchard's gifts "could be" or "might be" inducements to the child for sexual favors could just as likely not be such inducements but, rather, the actions of a loving parent toward a child. Blanchard then postulates that the act of a parent in putting money under a child's pillow while assuming the role of a tooth fairy could later be construed as the act of a sexual predator.

Recently, the Texas Court of Criminal Appeals in a yet-to-be-published case, ⁽¹⁾ has reiterated that:

An appellate court may not disturb a trial court's evidentiary ruling absent an abuse of discretion. Rivera v. State, 808 S.W.2d 80, 96 (Tex. Crim. App. 1991). A trial court abuses its discretion when it acts outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).

McGee, 2007 Tex. Crim. App. LEXIS 1122, at *7-8.

Waggoner's testimony, while not weighty, provided some basis to show that sometimes sex offenders work in some ways which Blanchard was alleged to have acted. Even though the testimony of Waggoner did not provide totally novel perspectives and provided no pivotal revelations for the jury to consider, they nevertheless are the perspectives of an expert. The trial court did not abuse its discretion in allowing the admission of this testimony and in allowing the jury to put the appropriate weight on the conclusions of the expert. We overrule this point of error.

We affirm the judgment.

Bailey C. Moseley

Justice

Date Submitted: September 27, 2007

Date Decided: October 25, 2007

Do Not Publish

1.

McGee v. State, No. PD-1172-06, 2007 Tex. Crim. App. LEXIS 1122 (Tex. Crim. App. Sept. 12, 2007).