Terry, John v. State

Court of Appeals of Texas

Terry, John v. State

Court of Appeals of Texas·Decided March 26, 2013·No. 05-12-00279-CR·Published

Opinion

A FF1 kM 11); aII(l ( )pinion Filed Vlarch 26, 20 I 3.

In i’he Qitinrt tif Appiah FiftI! Thtrtrt uif rxas at tlla No. 05-1 2-00279-CR No. 05-I 2-00295-CR

JOHN TKRIfl’, Appellant V. TIlE S1X[F (iF i’FXAS. Appellee

On ApptuiI troni the 203rd .JudiciaI L)istrict Court Dallas County, Texas Trial Court Cause Nos. F09—16254—1’ & F09—16253—P

OPINION Before Justices Lang—Micrs, Murphy, and Fillmore Opinion by Justice Fillmore A jury convicted John Terry of two offenses of aggravated sexual assault of a child and

assessed punishment on each offense of a S5000 fine and seven years’ imprisonment, but

recommended that the imprisonment be probated. In six issues, Terry argues the trial court (1)

violated Terry’s right to confront the witnesses against him and abused its discretion under the

rules of evidence by not allowing Terry to impeach witnesses with evidence of the complainant’s

motive to fabricate the charges against him, (2) erred by denying Terry’s motion for new trial.

(3 ) erred by permitting the State to impeach Terry on his post—arrest silence, and (4) violated

article 36.16 of the code of criminal procedure by amending one of the jury charges in the guilt

phase of the trial after reading the charge to the jury. We affirm the trial court’s judgment. Background’

Sit, who was lilleen years old at the time of trial 4 testified that Terry was her mother’s

stepbrother. From 2002 through 20()4. when S.13. was between six and eight years old, Terry

lived with SB. ‘s grandmother. L.T., and several other relatives. S.L1. and her brother, M.B..

would visit L.T. tbr weekends during the school year and for as long as a week during the

summer. S.B. testified that during the visits, Terry rubbed his penis on her “butt,” put his penis

in her mouth, and touched her chest.

When S.B. was thirteen yearn old, her mother tB., had a discussion with her about

Facebook and texting. T.B. testified that S.B. became angry and defensive and kept saying that

she was “not going to do anything like that.” T.B. asked S.B. if somebody had already “done

something” or “sent something” to her. 5.8. initially would not respond to T.B.’s questions.

After approximately two-and-one-halt’ hours. S.B. “shook her head” when T.B. asked if

somebody had done something to her. TB. began naming individuals. S.B. shook her head “no”

after each name. When T.B. named Terry, 5.8. shook her head “yes” and started crying. S.B.

told T.B. that Terry put his penis in her mouth and in her “bottom area” and rubbed her chest.

After the outcry, S.B. began attending counseling with Melissa Dobbins. Dobbins

testified at trial during the State’s case-in-chief and brought the records of her sessions with S.B.

The following morning, Terry’s counsel stated he had been provided documents “late yesterday”

relating to five additional counseling sessions that S.B. had with Dobbins. The record relating to

one of those sessions indicated that approximately nine months after S.B.’s outcry, T.B.

discussed with Dobbins a possible “sexting” incident involving S.B. and a “male peer” at school.

Terry has not challenged the suffidacy of the evidence to suppuit the convictions. Accordingly. we recite only those hots necomary to t address Terry’s complaints on appeal

—2— flw counseling records indicate T.B. told L)obbins that, when questioned about the incident. Sit.

became very emotional anti admitted she sent a picture to the boy.

Sit. had returned to school and was not present at trial at the time Ferry’s counsel raised

the issue of the additional counseling records. However, the trial court allowed Terry’s counsel

to question TB. outside the presence of the jury. T.B. testified that when she was “accusing”

S.B. of sending the picture, S.B. admitted doing so. However, S.B. later told T.B. that she said

“that because I guess that’s what you want to hear and that’s what everybody is accusing me of.”

S.B. then denied there was a picture and said it “was rumors.”

Terry’s counsel stated that he wanted to use the evidence to show S.B. initially admitted

to sending the picture, but later denied it. Terry’s counsel argued he should be allowed to cross-

examine 5.8. on the “sexting” incident because both the outcry against Terry and S.B.’s

admission that she sent a photograph occurred when T.B. was accusing or lecturing S.B. about

certain conduct. Because S.B. claimed she told T.B. what TB. “wanted to hear” pertaining to

the “sexting” incident, the jury could determine that S.B. also told T.B. what she wanted to hear

regarding the outcry against Terry. The trial court denied Terry’s request to question S.B. and

T.B. about the incident.

Terry testified that he did not abuse S.B. He also offered evidence that the abuse could

not have occurred at the times and places described by S.B.

The jury convicted Terry of two offenses of aggravated sexual assault of a child. Terry

filed a motion for new trial asserting, among other grounds, that the trial court’s refusal to allow

him to recall and cross-examine T.B. and S.B. on the “sexting” incident violated his right to

confront the witnesses against him. After two non-evidentiary hearings, the trial court denied the

motion for new trial. At Terry’s request, the trial court made findings of fict and conclusions of

law. As relevant to this appeal, the trial court found (1) “sexting” is the sending of digital text

-3- issaies c uiiaiiilmi sieeci i\ C. pu Vocat ivc. or explicit sexual photographs: (2) S.B. told I .B.

that she had texted a sexual picture of herself to a boy; (3) S. B. later denied texting such a

pietul e (4) on the e e ot ti 1 al thc State infoi med the defense that no sexting’ had oeeui ied (S)

a hen S.B, and I B, tesli tied, the deflnse knew of the alIenation that SB. had “sexted,’’ and had

been told by the Slate it as not true. but did not crossexaminc S. B. or [1 . about it; ( ( ) the

additional therapy notes that were given to the defense atler S. B. and F. B. testi tied contained

relèrences to SB. having told LB. about “sexting” a picture of herself and later recanting, both

of which incidents were already known to the defense; (7) LB. testified, outside the presence of

the jury, about the “sextine’’ incident and testified S. B. had stated that she did not send a picture;

and (5) the trial court. relying on rule of evidence (0X( b). relused to allow the defense to recall

SB. and LB. to crossexamine them about S.B.’s lie. The trial court concluded S,B.’s lie did not

deal with a specific bias, motive, or interest to testify in a particular matter and the incident about

which she lied did not involve Terry. Rather, it was a specific act or conduct that Terry wanted

to use to impeach S.B. ‘s character for truthfulness and, thereibre. was inadmissible under rule of

evidence 605(b).

Cross-Examination of SB. and T.B.

In his tirst four issues, Terry alleges the trial court ciTed by denying his request to cross-

examine SB. and ‘F.B. about the “sexting” incident and by denying his motion fur new trial on

that ground. Relying on Hummer i. Slate. 296 S.W.3d 555 (Tex. (‘rim. App. 2009), Terry

argues the evidence that S.l3. lied to her mother about the “sexting” incident was admissible

because it established S.B.’s “motive to fabricate and her modus operandi when fabricating.”

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