Thomas Otis Palmer v. State

• Court: Court of Appeals of Texas
• Decided: April 29, 2010
• Docket: 01-10-00281-CR
• Status: Published

Opinion

Opinion issued April 29, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00141-CR

NO. 01-10-00280-CR

NO. 01-10-00281-CR

NO. 01-10-00282-CR

THOMAS OTIS PALMER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 23rd District Court[*]

Brazoria County, Texas

Trial Court Cause No. 47165

MEMORANDUM OPINION

          A jury convicted appellant Thomas Otis Palmer of four counts of aggravated sexual assault of a child (01-08-00141-CR, Count 1; 01-10-00280-CR, Count 2, 01-10-00281-CR, Count 3; 01-10-00282-CR, Count 4), and the trial court assessed punishment at confinement for 80 years on each count, to be served concurrently.  See Tex. Penal Code Ann. § 22.021 (Vernon Supp. 2009).  In two issues, Palmer argues that (1) the evidence was factually insufficient to support the jury’s verdict and (2) the trial court violated his constitutional rights to confront his accuser by preventing him from cross-examining a child complainant about a prior, unrelated sexual abuse outcry. 

          We affirm.

Procedural History

          This appeal relates to charges that appellant Palmer sexually abused three child complainants—C.M., L.M., and L.G.  The conduct at issue was alleged to have occurred in or around April 2003.  The youngest complainant, C.M., was four years old at the time of the alleged conduct.  L.M. was seven years old at the time, and L.G. was twelve.

          In April 2004, sexual abuse charges against Palmer relating to all three child complainants were presented in a consolidated trial.  The jury could not reach a verdict, and the trial court granted a mistrial.

In March 2005, Palmer was tried on charges relating to L.M. only, and the jury convicted him of aggravated sexual assault of a child and indecency with a child by exposure.  Palmer v. State, 222 S.W.3d 92, 93 (Tex. App.—Houston [14th Dist.] 2006, pet. ref’d) (Palmer I).  During cross-examination of L.M. in the 2005 trial, the defense elicited testimony that L.M. previously accused her mother’s female friend of sexually assaulting her.  Id. at 94.  In some respects this earlier outcry was factually similar to the accusations L.M. made against Palmer.  Id.  The trial court instructed the jury that it could not consider the evidence about the earlier sexual assault accusation unless it found beyond a reasonable doubt that the earlier accusation was false.  Id. at 95.  The Fourteenth Court of Appeals observed that the trial court found “some evidence of falsity” of the earlier accusation when it admitted the evidence for purposes of cross-examination.  Thus, the court of appeals held that there was egregious jury charge error, reversed the conviction, and remanded the cause for a new trial.  Id. at 96. 

After remand, in November 2007 Palmer was tried in another consolidated trial on all charges pertaining to C.M., L.M., and L.G.  The jury acquitted Palmer of all charges pertaining to L.M. and L.G., but the jury found Palmer guilty on four counts of aggravated sexual assault against C.M.  Palmer appeals these four convictions.

Factual Background

References to trial testimony in this factual background section refer to testimony at the November 2007 trial, which resulted in the convictions from which Palmer appeals.  Jill, the mother of C.M., L.M., and L.G., met Palmer in 2002 through a mutual friend.  From late 2002 until April 2003, Jill and her three children lived together in Brazoria County with Palmer and his daughter, D.P.  During this time frame, C.M., L.M., and L.G. were aged approximately four, seven, and twelve, respectively.

According to Jill and L.G., on the night before Easter Sunday 2003, Palmer took L.G. for a ride in his truck.  When they returned approximately six hours later, L.G. went straight to bed, and Palmer told Jill that they had been delayed from their errand because his truck broke down.  At trial, Palmer denied going anywhere with L.G. that night. 

On the Thursday following Easter, L.G. told her mother that Palmer had taken her to the beach, forced her to inhale cocaine, and raped her in his truck.  After L.G.’s outcry, C.M. told her mother that Palmer had been physically and sexually abusing her.  L.M. later came forward with additional allegations against Palmer.

With the help of a neighbor, Jill took her children to the home of Palmer’s father, where she spoke to Palmer’s step-mother, Jenny Palmer.  Jill then took her children to a women’s shelter.  Jenny testified at trial that she was aware of L.G.’s allegations against Palmer.  Jenny said that she questioned L.M. and C.M. and they both denied that Palmer had touched them inappropriately.  At trial, C.M. testified that she did not remember these conversations with Jenny, and L.M. testified that she vaguely remembered Jenny but did not really know her. 

At trial, C.M. testified that her mother had told her to be brave but did not tell her what to say.  C.M. testified that Palmer touched her “private parts” and “boobs.”  She said that he put his fingers inside her “private parts,” “stuck his fingers in [her] butt,” made her “suck on his private part,” and touched her “private part” with his “private part.”  C.M. testified that when Palmer penetrated her mouth, “he told me not to bite hard.”  C.M. testified that the abuse occurred privately, “in the closet with him with the lights turned off.”  She also testified that “white stuff came out” and went into her mouth.  Although she could not see in the dark closet, C.M. said she knew it was “white stuff” because she had seen it on a prior occasion or she must have spit it out and seen it on her hand.  C.M. also testified that she could not remember which house the alleged abuse took place in or what Palmer’s penis looked like.

On cross-examination, C.M. agreed with nearly all of the defense attorney’s statements suggested in the form of leading questions, effectively denying that any abuse had occurred.  She agreed that she had previously “sort of rehears[ed]” her testimony in the courtroom.  She agreed that in conversations with her mother and with Jenny Palmer she had previously denied any sexual abuse, that she was telling the truth when she did so, and that her mother had told her “the white stuff business” and “the story about the dark closet.”  On redirect examination, the prosecutor asked her why she agreed with the defense attorney’s statements, and C.M. responded, “Because I thought I had to.”  C.M. testified that she denied sexual molestation while she lived with Palmer out of fear of further abuse. 

L.M. testified that Palmer once exposed himself to her and once fondled her “private part” with his hand.  L.M. said that C.M. was in the room at the time of the molestation and that Palmer then took her to the kitchen to eat cereal. 

L.G. initially refused to testify because she did not want to talk about the incident again.  After the trial court admonished her that she had been subpoenaed and could be held in contempt of court, L.G. reluctantly testified.  L.G. repeatedly answered questions by saying that she did not know, did not remember, or did not understand the question.  However, L.G. also testified that Palmer drove her to the beach and made her remove her shirt and shorts and go swimming.  When they returned to Palmer’s truck, Palmer cut her panties off with a knife, performed oral sex on her, and raped her.  L.G. said that Palmer warned her not to tell her mother about what happened. 

The children’s mother, Jill, testified that she had observed changes in her children’s behavior, particularly C.M., who frequently had bruises and injuries.  In early April 2003, Jill observed some inflammation to C.M.’s perineum, the region between her anus and genital area.  At trial, Jill said it was “very abnormal” and that it was “like a hemorrhoid or even worse it was turned the wrong way out.”  When Jill asked C.M. about it, C.M. said she did not know what happened.  Jill testified that C.M. said she would not tell her mother if Palmer had hurt her.  According to Jill, Palmer later looked at the inflammation and spoke with C.M. alone.  C.M. then told her mother that she had injured herself by trying to insert a tampon.  Jill testified that Palmer threatened to kill her when he learned that Jill had asked C.M. if Palmer had touched her inappropriately.  According to Jill, Palmer refused to let her take C.M. to a doctor.

          After reporting the alleged abuse to police, the children underwent medical examinations.  L.M. was examined at the Children’s Assessment Center in Houston.  Records of L.M.’s examination stated that there was no physical or anogenital trauma, noting: “Normal exam neither confirms nor denies allegations of sexual abuse.”

L.G. was examined at the Children’s Assessment Center, Texas Children’s Hospital, and the ABC Clinic at The University of Texas Medical Branch at Galveston (UTMB).  Dr. James Lukefahr, who examined L.G. at UTMB, noted that the examination was abnormal and consistent with acts described by her and the time lapse since the alleged last incident of abuse.  Some of the details in the narrative taken by the UTMB social worker differed from the trial testimony by L.G. and her mother and from other accounts of the alleged assault against L.G. (as found in the other medical records).  Both L.G. and her mother testified that the social worker must have made some mistakes in transcribing the narrative.  The social worker died before trial and did not testify. 

The State introduced C.M.’s redacted medical records from UTMB without objection.  The defense introduced C.M.’s redacted medical records from Texas Children’s Hospital.  These records showed that C.M. was examined at UTMB and Texas Children’s Hospital.  According to the UTMB records, Jill reported that C.M. was “very scared, very angry, staying to herself, impatient, demanding, very hard to deal with sometimes.”  C.M. experienced burning when she went to the bathroom and distortion of her stomach, and she had a history of rectal pain, diarrhea, vomiting, and bleeding in the anal area.  Jill told the social worker that C.M. had not experienced vaginal bleeding or urinary tract infections.  In a separate UTMB record labeled “Child Abuse/Neglect Protocol,” the pediatric resident, Dr. Bishawn Morris, reported the following “history of abuse/neglect” for C.M.:

Per mom, [C.M.] has been abused sexually and physically since August 2002.  However [C.M.] did not inform her mother until April 24, 2003 when . . . [her] older sister told her mom that she was sexually abuse[d] by mom’s boyfriend—Thomas Palmer.  Per mom, [C.M.] told her mom that [Palmer] put his fingers in her rectum, made her cut all of her hair off, forced her to perform oral sex on him, placed dog feces within her panties, poked her eyes, submerged her face and body in scalded water, tied her feet with jumper cables, and only allowed her to eat green beans or hot peppers. . . . .  Per mom, [C.M.] did not report vaginal penetration however she often stops talking about the incident.  Per mom, [C.M.] tells her small bits of information daily since they have been at the shelter.

The UTMB records also indicate that C.M. had been acting out sexually toward her sister L.M. during their baths.  Dr. Lukefahr reported a defect in C.M.’s perineum, noting: “The concave defect in the midline of the perineal body is best explained in my opinion as a healed penetrating injury and is highly consistent with the history of rectal pain and bleeding.” 

Records from Texas Children’s Hospital showed an obvious bruise on C.M.’s lower leg and blunt trauma to C.M.’s left hand with swelling of one finger.  Texas Children’s Hospital did not report any evidence of anogenital trauma or the perineal abnormality, and its records reflected that the rectal exam revealed an “anal tag” and no lesions, tears, or discharge.  However, Dr. Lukefahr testified that UTMB had equipment that Texas Children’s Hospital lacked, specifically a colposcope, which allows for a closer look at the child’s body while conducting a sexual assault examination.

Dr. Lukefahr testified at trial that he examined L.G. and C.M. at UTMB.  He described the abnormality in C.M.’s perineum, which he believed to be healed trauma from a penetrating injury, probably non-accidental.  He testified that the findings of his examination were consistent with the acts of sexual abuse that C.M. alleged and the time lapsed since the last alleged incident of abuse.  However, he also conceded that “in general, in children, the exams are not either [sic] normal or not specific enough to be able to conclude who the perpetrator was or when something happened with certainty.  In other words, a lot of that information really relies on the history.”

Dr. Lukefahr also testified that he found evidence of healed, penetrating trauma to L.G.’s vaginal vestibule, but no tearing or laceration of her hymen.  L.G. reported no bleeding as a result of the alleged assault, which was inconsistent with Dr. Lukefahr’s expectation, but he also acknowledged that “a lot of girls do not report bleeding even when a physical exam would strongly indicate they probably had had some,” and “there is a possibility that [L.G.] did have a little bit of bleeding which, for whatever reason, she didn’t notice or she didn’t pay any attention to.”  He could not rule out that the abnormality he observed on L.G. was actually a normal variation. 

Palmer testified and denied all the allegations of sexual abuse.  He admitted being abusive to the child complainants’ mother, confessing to hitting her one time with a closed fist.  Palmer testified that he and Jill fought frequently and that Jill fabricated the allegations against him.  He mentioned her history of writing bad checks to bolster his theory of fabrication.  He testified that her motives for fabricating the allegations were revenge and her desire to live for free at a women’s shelter.

Factual Sufficiency

Palmer’s Contentions

In his first issue, Palmer contends that the evidence was factually insufficient to support his conviction for aggravated sexual abuse.  Palmer’s argument rests on the circumstance that the same jury that convicted him on sexual abuse charges relating to C.M. also acquitted him on similar charges relating to L.G. and L.M.  Palmer reasons that because Jill testified in support of all of the charges involving her three children, the jury’s verdict of acquittal on charges relating to L.G. and L.M. indicates that the jury found each of Jill, L.G., and L.M. to be entirely not credible. 

Palmer thus contends that no reliable evidence exists within the record to support the conviction on charges relating to C.M.  In addition to his premise that the jury necessarily rejected all testimony from Jill, L.G., and L.M., Palmer also argues that the testimony of Dr. Lukefar was only neutral with respect to whether Palmer committed an offense.  Finally, Palmer argues that for various reasons the testimony of C.M. herself was “tainted” and not worthy of being credited.

Standard of Review

In a factual sufficiency review, we view all of the evidence in a neutral light. Ladd v. State, 3 S.W.3d 547, 557 (Tex. Crim. App. 1999).  We will set the verdict aside only if (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust or (2) the verdict is against the great weight and preponderance of the evidence.  Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

Under the first prong of Johnson, we cannot conclude that a conviction is “clearly wrong” or “manifestly unjust” simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006).  Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury’s resolution of that conflict.  Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury’s verdict.  Id.  In conducting a factual sufficiency review, we must also discuss the evidence that, according to the appellant, most undermines the jury’s verdict. See Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).

In reviewing the factual sufficiency of the evidence, appellate courts should afford almost complete deference to a jury’s decision when that decision is based upon an evaluation of credibility.  Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).  The jury is in the best position to judge the credibility of a witness because it is present to hear the testimony, as opposed to an appellate court which relies on the cold record.  Id.  The jury may choose to believe some testimony and disbelieve other testimony.  Id. at 707.  Thus, the jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony.  Id. at 705; Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007) (“Unless otherwise provided in this Code, the jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby.”).  Moreover, the testimony of a child complainant, if believed by the jury, is factually sufficient to support a conviction for sexual assault.  Tex. Code Crim. Proc. Ann. art. 38.07 (Vernon 2005) (sexual assault conviction is supportable on uncorroborated testimony of victim of sexual offense 17 years of age or younger); Perez v. State, 113 S.W.3d 819, 838 (Tex. App.—Austin 2003, pet. ref’d), overruled on other grounds by Taylor v. State, 268 S.W.3d 571, (Tex. Crim. App. 2008); Tear v. State, 74 S.W.3d 555, 560 (Tex. App.—Dallas 2002, pet. ref’d).

Analysis

As alleged in the indictment, the State charged Palmer with aggravated sexual assault of C.M. by penetration of C.M.’s sexual organ and anus with his finger (counts two and four), by penetration of C.M.’s mouth with Palmer’s sexual organ (count one), and by contacting C.M.’s sexual organ with his sexual organ (count three).  See Tex. Penal Code Ann. § 22.021.  In support of these allegations, the State presented, among other things, testimony from C.M. that she was abused by Palmer, corroborating testimony from C.M.’s mother and sisters, and corroborating medical testimony from her examining doctor, Dr. Lukefahr.

1.       Testimony of complainant.—C.M. testified that Palmer touched her “private parts” and “boobs,” put his fingers inside her “private parts” and her “butt,” made her “suck on his private part,” and touched her “private part” with his “private part.”  C.M. testified about the details of the abuse, including statements that Palmer told her not to “bite hard” and that “white stuff” came out and went into her mouth. 

Palmer would have us entirely disregard the testimony of C.M.  He contends that her testimony was “tainted” and cannot be given full credit, due to multiple interviews of C.M. about the abuse, including some in which C.M. denied being touched inappropriately.  Palmer also notes that the record does not contain evidence of C.M.’s responses as they may have been noted by the Angleton Police Department, Child Protective Services personnel, the Lake Jackson Police Department, Texas Children’s Hospital, the Children’s Advocacy Center, and UTMB.  These are matters that Palmer explored at trial in order to attempt to undermine C.M.’s credibility.  The jury was entitled to decide whether and how to credit C.M.’s testimony.  We cannot substitute our judgment for that of the jury.  Lancon, 253 S.W.3d at 705.

Palmer also invites us to consider “the age and relationship of C.M. to the other complaining witnesses.”  He suggests that as the youngest of three sisters, C.M. “may desire only to be involved with her sisters and the events that are currently circling around them.”  Palmer provides no legal authority for disregarding C.M.’s testimony on this basis, and we decline to do so.  As a general rule, “[e]very person is competent to be a witness except as otherwise provided” in the rules of evidence.  Tex. R. Evid. 601(a).  The rules of evidence specifically address child witnesses, and they provide that children will be deemed incompetent to testify if “after being examined by the court,” they “appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.”  Id. 601(a)(2).  Assuming that she otherwise satisfies the requirements for witness competency, there is nothing inherently suspect about C.M.’s age, whether judged at the time of the alleged abuse or the time of her testimony.  See, e.g., Reyna v. State, 797 S.W.2d 189, 192 (Tex. App.—Corpus Christi 1990, no pet.) (four-year-old witness found competent to testify about sexual assault when examination demonstrated she understood difference between lie and truth; was able to testify to her name, age, and names of her siblings; and was able to identify her uncle “as the man who put her hands on his genitals, which she identified through the use of an anatomically correct doll”).  The trial court examined C.M.’s competency outside the presence of the jury and before her testimony, and found her competent without defense objection.  The jury was aware of C.M.’s age and the interaction between her and her sisters as it related to the allegations of abuse.  It was the jury’s responsibility to pass on the facts, and we must give due deference to its determinations in that regard.  See Lancon, 253 S.W.3d at 705.

2.       Testimony of family members.—Palmer argues that the jury must have disbelieved C.M.’s mother (Jill) and sisters (L.G. and L.M.) because the jury acquitted him of the charges pertaining to L.G. and L.M.  Palmer concludes that the remaining evidence was insufficient to convict him of the charges pertaining to C.M.  The evidence on the charges pertaining to L.G. and L.M. was qualitatively different from that pertaining to C.M.  We thus disagree with Palmer’s assessment of the record that the jury could not have harbored reasonable doubt about the charges involving L.G. and L.M., while finding the evidence sufficient to support a conviction on charges involving C.M.

The oldest sister, L.G., testified only reluctantly, and she did not know or remember numerous details about her allegation of rape.  Dr. Lukefahr testified that he could not exclude the possibility that the abnormality in L.G.’s examination was actually a normal physical variation.  There were factual inconsistencies among the medical records, L.G.’s testimony, and Jill’s testimony pertaining to L.G.’s rape allegation and other events that L.G. alleged transpired that night.  In contrast, the social histories included in C.M.’s medical records were consistent with her testimony about the abuse she alleged against Palmer. 

With respect to the other sister, L.M., her testimony was brief and the context of her allegation (i.e., that Palmer abused her once in the presence of C.M. and then offered her cereal) was different from the context of C.M.’s alleged abuse (i.e., that Palmer took her into a dark closet).  L.M.’s medical examination showed normal findings.

The testimony of the mother, Jill, mainly centered on L.G.’s outcry.  Although Jill testified that the single alleged act of molestation of L.M. occurred while she was at work, she offered no details about what had happened.  As to the abuse allegedly committed against C.M., Jill offered no details and no description of C.M.’s outcry.  Jill described the perineal abnormality and said that C.M. had problems, but Jill also testified that she did not know C.M. was being sexually abused.  Thus, while Jill’s testimony might have supported L.G.’s and L.M.’s testimony, it did not reinforce C.M.’s testimony about the specific acts of sexual abuse she said Palmer committed against her.

In sum, the testimony from Jill and her three daughters was materially different with respect to the separate charges involving each daughter.  The level of corroborating evidence was also different with respect to the separate charges involving each daughter.  The fact that the jury acquitted Palmer on charges relating to L.G. and L.M. does not necessarily mean that it concluded those two complainants and their mother were not credible witnesses.  The jury could have found all of these witnesses credible but been satisfied of guilt beyond a reasonable doubt only with respect to C.M.  We need not speculate about how the jury reached its conclusions; it is sufficient for us to observe we have no basis to conclude that such a result was clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence.  See Johnson, 23 S.W.3d at 11.

3.       Testimony of Dr. Lukefahr.—Dr. Lukefahr testified, without defense objection, that he examined C.M. and his findings were consistent with C.M.’s allegations against Palmer.  C.M.’s medical examination showed not only healed penetrating trauma to her perineal area, but also bruising on her leg and blunt trauma to her hand. 

Palmer contends that this testimony was neutral at best and does not support a judgment of conviction.  Dr. Lukefahr did concede that he relied on the history provided by C.M.’s mother.  However, his explanation of his findings with respect to C.M.’s perineum could have been understood by the jury as a meaningful corroboration of C.M.’s allegation.  Dr. Lukefahr expressed informed skepticism that his observations of abnormalities in C.M.’s perineal area had a natural explanation:

Q.      Is it possible for a girl to be born with some sort of abnormality on her perineum?

A.      Yes.  There actually is a fairly uncommon birth defect of that area that’s called a midline fusion defect, but it appears very, very different from this.  And so, that in my judgment, this was definitely not a midline fusion defect.  And I really do not think that it was a birth defect or a normal variant of that area.

Q.      Because you have never seen anything like that before?

A.      Well, not only have I never seen anything like it, but I have never read about it in the medical literature, I have never had other heard other professionals talk about it at our meetings, so forth.  It’s really just the one and only time I have ever come across that finding.

In addition, Dr. Lukefahr expressed an opinion that an accidental injury to that part of C.M.’s body was unlikely:

Q.      So, the abnormal finding on [C.M.] on her perineum, do you have an opinion as to how that could have been caused?

A.      Yes.  In my opinion, it does most likely represent healed trauma.  In other words, there was some sort of injury to that area that healed.  And as far as what produced the trauma, it really isn’t possible to distinguish with certainty from the examination what the object might have been that caused the injury, but it was some sort of penetrating injury to her perineum.

Q.      When you say “penetrating injury,” is that a location on a child’s body that could be done accidentally?

A.      I would say in this particular instance, it would be -- it’s probably possible to do that, but it would be an exceedingly rare event because the perineal body is so sheltered behind the surrounding soft tissues.  In other words, the -- especially the inner thighs.

Like, for instance, if a child fell on something, it would be very unusual that the object that she fell on would have bypassed all of her other tissues, her legs, her labia, everything else and only impacted that one very small area.

Palmer is correct that it would have been possible for the jury to view Dr. Lukefahr’s testimony as being only neutral as to whether C.M. had been sexually abused.  But that was not the only inference the jury could have drawn, and we cannot conclude it would have been clearly wrong, manifestly unjust, or against the great weight and preponderance of the evidence for the jury to have viewed this evidence as corroborative of C.M.’s testimony.  See Johnson, 23 S.W.3d at 11.

4.       Defense evidence.—Palmer denied all allegations of abuse, and his step-mother, Jenny, testified that she asked C.M. if Palmer had touched her inappropriately and C.M. said, “No.”  C.M. also denied that Palmer abused her on cross-examination, but on redirect examination she explained that she thought she had to agree with the defense attorney.  Thus, as often is the case in criminal prosecutions, there was directly conflicting evidence on the core allegations involving C.M.  The jury was charged with determining what testimony to believe and what testimony to reject, and we cannot say that the great weight and preponderance of the objective evidence contradicts the jury’s apparent determination that C.M.’s testimony was credible.  See Lancon, 253 S.W.3d at 707.

5.       Length of jury deliberations.—Finally, we address Palmer’s contention that our factual sufficiency review should consider that “[t]he record indicates the jury struggled with the evidence for approximately 12 hours.”  Setting aside the fact that the record tells us nothing about whether the jury “struggled” or anything else the jury might have been doing in its private deliberations, Palmer offers no legal authority for considering the length of jury deliberations as part of a factual sufficiency review.  To the contrary, the well-established precedents instruct us to conduct our review considering all of the evidence in a neutral light.  See Ladd, 3 S.W.3d at 557.  The length of jury deliberations is not part of the evidence to be considered in this analysis.

*        *        *

Logic does not compel the conclusion that an acquittal on the charges relating to L.G. and L.M. also required an acquittal on the charges relating to C.M.  The evidence supporting the charges relating to C.M. is not so weak as to render the verdict clearly wrong and manifestly unjust.  See Perez v. State, 113 S.W.3d at 838 (“The testimony of a child victim alone is sufficient to support a conviction for aggravated sexual assault or indecency with a child.”).  Nor does our review of the record suggest that the verdict is against the great weight and preponderance of the evidence.  We hold that the evidence was factually sufficient, and we overrule Palmer’s first issue. 

Limiting Cross-Examination of Witness
About Unrelated Prior Allegation of Abuse

          In his second issue, Palmer contends that the trial court violated his Sixth Amendment right to confront his accuser by preventing him from cross-examining L.M. about a similar outcry she made years before her outcry against Palmer.  Palmer argues on appeal that the testimony he sought to elicit would have supported his theory that Jill “coached her children to say [Palmer] had sexually molested them,” and should have been admitted under both the Confrontation Clause and the doctrine of chances.  Palmer further argues that the trial court’s exclusion of his proffered evidence denied his constitutional right to present a meaningful defense.

Bill of Exceptions

At a hearing outside the presence of the jury, the trial court stated that it had reviewed Smith County police department records relating to L.M.’s prior outcry and relevant legal authority submitted by Palmer’s counsel.  The police records reviewed by the trial court included results from polygraph tests administered to the complainants’ mother and her friend, Missy, whom L.M. had accused of molestation.  The polygraph results showed deception when Jill denied coaching L.M. and deception when Missy denied touching L.M.’s vagina.  The trial court stated:

I have informed [defense counsel] that I was not going to allow him to question [L.M.] regarding that incident of Smith County.  The State objected to that testimony pursuant to Rule 608(b).  And I have informed [defense counsel] that I was not going to allow that testimony.

Palmer’s attorney made a bill of exception.  He summarized L.M.’s trial testimony that Palmer put his finger “in her private” while she was on her mother’s bed, clothed.  According to L.M., C.M. was also in the room at the time, and it happened only once.  Palmer’s counsel then described the evidence he proposed to use to cross-examine L.M.:

In Defendant’s Exhibit No. 14, which was referred to earlier, the Tyler, Texas, Police Case . . . in there [L.M.] is asked to tell what this person called . . . Missy, did to her.  And in the report, not referred to by a number but it’s her narrative typed out and she says that’s what Missy did to her.  She was in Mommy’s room.  She was on Mommy’s bed.  She had all her clothes on.  Joe was in the room.  Missy was on the bed.  Missy put her finger in her privates, and it happened only one time.

In addition, Palmer also introduced—for the bill of exception only—a transcript from an earlier trial in which he cross-examined L.M. as to the matters he sought to introduce in the 2007 trial.  In the earlier trial, L.M. testified that she remembered a woman named Missy who once put her hand in L.M.’s “private.”  L.M. testified that she was in her mother’s room with Missy and a man named Joe.  L.M. said that she was fully clothed and that it happened only once. 

The trial court asked Palmer’s attorney for what purpose the testimony was offered, and he replied, “We are offering that because that testimony was denied, and offering it under the Sixth Amendment to the U.S. Texas [sic] Constitution, the confrontation clause, the right to put on a defense, as well as the Doctrine of Chances.”  The State objected under Rule of Evidence 608(b), arguing that Palmer was, in fact, offering the evidence to impeach L.M.’s credibility.  The trial court sustained the State’s objection, stating, “I’m going to find that it’s being offered for impeachment, that there’s not been a threshold finding that the allegations were false, and I am going to deny the request under Rule 608(b), as well as Rule 403.”

Palmer’s argument to the trial court focused entirely on the similarities between the two outcries by L.M.  To the extent Palmer suggests on appeal that he intended to use the excluded evidence in an attempt to establish that Jill “coached her children to say [Palmer] had sexually molested”—a purpose that arguably could have been permissible under Rule 613(b) to establish motive or bias, see, e.g., Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009)—such an argument does not comport with the objection at trial and accordingly has been waived.  See Tex. R. App. P. 33.1(a).

          We review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard.   Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).  A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement.  Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990).  We review the trial court’s ruling in light of what was before the trial court when it ruled.  Weatherred, 15 S.W.3d at 542.  A trial court’s ruling will be upheld if it is reasonably supported by the record and is correct under any theory of law applicable to the case.  Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

The Confrontation Clause

“The Sixth Amendment right to confront witnesses includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest, or motives in testifying.”  Hammer, 296 S.W.3d at 561 (citing Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974)).  This right, however, is not unbounded.  The trial court may exercise its discretion to limit the scope and extent of cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence.  Hammer, 296 S.W.3d at 561; Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim. App. 2000).  Ordinarily, the right to cross-examine a witness under the Sixth Amendment will not conflict with an accused’s rights under the rules of evidence: “[g]enerally speaking, the Texas Rules of Evidence permit the defendant to cross-examine a witness for his purported bias, interest, and motive without undue limitation or arbitrary prohibition.”  Hammer, 296 S.W.3d at 563; Lopez, 18 S.W.3d at 222–23.  However, the Confrontation Clause will prevail where such a conflict arises.  See U.S. Const. art. VI, cl. 2; Tex. R. Evid. 101(c); Hammer, 296 S.W.3d at 561 & n.9; Lopez, 18 S.W.3d at 222–23. 

Rule of Evidence 608(b)

Rule of Evidence 608(b) provides that “[s]pecific 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).  Palmer suggests that a prior outcry is a statement, not evidence of “conduct” excluded by Rule 608(b).  This argument is inconsistent with settled law.  The Court of Criminal Appeals has addressed the question of whether Rule 608(b) precludes a criminal defendant from cross-examining a complainant about prior false allegations of abuse.  Lopez, 18 S.W.3d at 223–26.  In Lopez, the Court observed that other states have created exceptions to permit the introduction of prior false allegations despite otherwise applicable evidentiary bars, but the Court declined to create such a per se exception in Texas, observing:

Legal commentators have . . . recognized the peculiarity of the sex-offense exception recognized in other states.  Professors Goode, Wellborn, and Sharlot point out that this rule “cannot be easily squared with the dictates of Rule 608(b).  Typically, the probative value of such evidence flows from the inference it raises as to the complainant’s propensity to make false claims—precisely the type of inference proscribed by Rule 608(b).”

Id. at 224–25 (quoting 1 Steven Goode et al., Texas Practice: Guide to the Texas Rules of Evidence: Civil and Criminal § 608.1 (2d ed. Supp. 1998)).  Again addressing the admissibility of prior, purportedly false, allegations of abuse, the Court of Criminal Appeals wrote:

The theory for admitting prior false accusations of rape in a sex-offense prosecution is frequently analogized to Aesop’s story of “The Boy Who Cried Wolf.”  A past false accusation makes it more likely that the witness lacks credibility and thus should not be believed concerning this accusation.  But in Aesop’s fable, there really was a wolf, and it killed the sheep.  The moral of that story was “Nobody believes a liar . . . even when he is telling the truth.”  A criminal trial, however, is designed to find the truth about a specific incident, not to decide whether someone has lied in the past about the presence of wolves or about being raped.  Prior false allegations of rape do not tend to prove or disprove any of the elements of the charged sexual offense.

Hammer, 296 S.W.3d at 564 (footnotes omitted).

We hold that the trial court did not abuse its discretion in sustaining the State’s Rule 608(b) objection to Palmer’s proffered evidence that L.M. had previously made an allegation of sexual abuse similar to the one she made against Palmer.  There was no showing that the prior allegation of abuse was a false accusation.  In any case, such evidence was inadmissible for the purpose of attacking L.M.’s general credibility.  See Tex. R. Evid. 608(b); Hammer, 296 S.W.3d at 564.  Furthermore, the exclusion of such evidence, offered to attack the witness’s general credibility, did not violate the Confrontation Clause.  See Hammer, 296 S.W.3d at 564–65 (citing Boggs v. Collins, 226 F.3d 728, 739–40 (6th Cir. 2000); United States v. Bartlett, 856 F.2d 1071, 1089 (8th Cir. 1988); Hughes v. Raines, 641 F.2d 790, 792–93 (9th Cir. 1981); Adams v. Smith, 280 F. Supp. 2d 704, 714 (E.D. Mich. 2003)); see also Davis v. Alaska, 415 U.S. 308, 321, 94 S. Ct. 1105, 1112–13 (1974) (“the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions”).

The Doctrine of Chances

Palmer argues that the “doctrine of chances” applies to establish the relevance of L.M.’s prior allegation of abuse, and the trial court’s exclusion of the evidence necessary to cross-examine her on this point effectively denied him the right to confront his accusers and present a meaningful defense.  The “doctrine of chances” is a legal theory based on the concept of logical implausibility.  See Fox v. State, 115 S.W.3d 550, 559 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d).  It provides that the more often unusual events occur under the similar circumstances, the less likely is the unusual event to be the true cause.  De La Paz v. State, 279 S.W.3d 336, 347 (Tex. Crim. App. 2009) (“The ‘doctrine of chances’ tells us that highly unusual events are unlikely to repeat themselves inadvertently or by happenstance.”); Plante v. State, 692 S.W.2d 487, 491–92 (Tex. Crim. App. 1985).  It is “the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all.”  Plante, 692 S.W.2d at 491–92 (quoting 2 James H. Chadbourn, Wigmore on Evidence § 302 (1979)); see also Casey v. State, 215 S.W.3d 870, 881 (Tex. Crim. App. 2007); Daggett v. State, 187 S.W.3d 444, 453 n.18 (Tex. Crim. App. 2005); Martin v. State, 173 S.W.3d 463, 467-68 (Tex. Crim. App. 2005).

In Texas, the doctrine of chances has most often been applied when the State sought to introduce evidence of extraneous offenses to prove intent or to rebut a defensive theory of like accident or mistake.  See, e.g., Plante, 692 S.W.2d at 491–92; Morgan v. State, 692 S.W.2d 877, 882, n.7 (Tex. Crim. App. 1985).  In Plante, the defendant-contractor purchased adobe tile on credit and failed to pay for it.  Plante, 692 S.W.2d at 489–90.  The Texas Court of Criminal Appeals held that evidence of other instances when the defendant failed to pay for goods or services rendered on credit was admissible, under the doctrine of chances, to show intent.  Id. at 493 (“If a person repeatedly fails to pay for items purchased on credit, we believe the natural inference to be that he or she is seeking to obtain something for nothing.”).  In Morgan, the defendant was charged with indecency with a child by contact.  Morgan, 692 S.W.2d at 878.  The evidence showed that the defendant had briefly touched the child’s genital area while playing with her, and the court of appeals concluded that this incident alone was insufficient to prove the defendant’s intent to gratify himself.  Id.  The Texas Court of Criminal Appeals held that evidence that the defendant had previously fondled the complainant and her sister was admissible, under the doctrine of chances, to show that the charged act was not accidental.  Id. at 881.

The Fourteenth Court of Appeals applied the doctrine of chances to conclude that certain defensive evidence regarding previous sexual assault accusations by a complainant’s siblings was relevant and admissible.  Fox, 115 S.W.3d at 561.  Fox was accused of sexually assaulting his two minor step-children and his biological daughter.  Id. at 556–57.  A consolidated trial led to an acquittal on the charges pertaining to one child and a mistrial as to the others.  Id. at 557.  Fox was tried again on charges pertaining to one child.  Id.  During the guilt-innocence stage of the trial, Fox unsuccessfully sought to offer evidence that two other children had made similar sexual abuse allegations on the same day.  Id.  Fox contended that this evidence supported his theory that the children’s mother had coached them to make false allegations in order to gain leverage in a custody dispute.  Id.  The complainant accused Fox of molesting her on a nearly daily basis, as she pretended to sleep on a creaky, metal bunk bed she shared with her step-sisters.  Id. at 556.  She testified that her sisters never awoke while Fox was molesting her.  Id. 

During the punishment phase of trial, the complainant’s older sister testified that she slept in the top bunk and that Fox frequently climbed into her bed and had sexual intercourse with her while her sisters slept in the lower bunk.  Id. at 557.  The court of appeals noted the similarities in the sisters’ stories: the abuse occurred frequently, at night, in a creaky bunk bed, while the other sisters slept.  Id. at 561.  The court in Fox thus relied on the combination of the similarity and the implausibility of the sisters’ accusations to conclude that the evidence of extraneous acts was relevant to the defendant’s theory that all three girls had been coached to make false allegations, and thus should have been admitted.  Id.

Palmer’s complaint on appeal is distinguishable from the circumstances presented in Fox.  To the extent Palmer’s defense theory was that Jill coached both L.M. and C.M., there is no logical connection between L.M.’s outcries and C.M.’s outcry.  There is no apparent common motive for Jill to have coached L.M. to accuse both Missy and Palmer of fondling her and for Jill to have coached C.M. to accuse Palmer of multiple acts of sexual assault.  Coaching by Jill is one possible explanation for L.M.’s similar accusations, but by no means is it the only possible explanation.  L.M.’s two similar accusations simply lack the forceful logical connection to Palmer’s convictions for sexually assaulting C.M. that are present in other doctrine-of-chances cases.  See Plante, 692 S.W.2d at 492 (“‘Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance . . . .  In short, there must be a similarity in the various instances in order to give them probative value.’”); Fox, 115 S.W.3d at 561 (relying on implausibility of and similarity between outcries of complainant and siblings); see also Dabney v. State, 816 S.W.2d 525, 528–29 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d) (holding that, in prosecution for theft of real estate, trial court’s admission of evidence that defendant had previously defaulted on 150 properties was proper under doctrine of chances because it showed defendant’s intent).

Even if the evidence of L.M.’s prior outcry had been admitted, it only could have been probative of a defense theory that L.M. had been coached to make false accusations of sexual assault—not that C.M. had been coached.  Because Palmer was acquitted of the charges that he sexually abused L.M., he was not harmed by the exclusion of this evidence.  See Tex. R. App. P. 44.2(b).

In any case, as noted above, Palmer did not offer the excluded evidence for the purpose of establishing that Jill coached her daughters to make false accusations of sexual abuse.  Although that certainly was one of the themes of Palmer’s defense, that purpose was not articulated to the trial court as the reason for offering the evidence of L.M.’s prior accusation.  When Palmer’s counsel made his bill of exception, he never stated that the excluded evidence was being proffered to prove coaching by Jill to establish motive or bias or for any other purpose.  The State’s objection to the evidence was based on Rule 608(b), a rule that prohibits using specific instances of the conduct of a witness to attack the credibility of the witness.  The prosecutor stated: “It’s the State’s impression this evidence is offered for nothing but the purpose of impeaching the credibility of the witness, [L.M.] with a prior allegation of sexual assault against someone else other than the defendant, and that only goes to impeach her credibility which [Rule] 608(b) specifically keeps out.”  The trial court then asked Palmer’s counsel whether he had any other argument, and defense counsel answered, “No, your Honor.”  The trial court then sustained the State’s objection, stating: “I’m going to find that it’s being offered for impeachment, that there’s not been a threshold finding that the allegations were false, and I am going to deny the request under Rule 608(b), as well as Rule 403.”

Right to Present a Defense

Finally, Palmer relies on the court-of-appeals opinion in his prior appeal, which stated that the cross-examination of L.M. about the prior outcry was “vital to his defense.”  Palmer I, 222 S.W.3d at 96.  In a previous trial, Palmer was convicted of sexually assaulting L.M.  Id. at 93.  The trial court permitted him to cross-examine L.M. about the earlier outcry but instructed the jury that it must find beyond a reasonable doubt that the prior outcry was false before it could be considered for impeachment.  Id. at 95.  On appeal, Palmer contested this jury instruction.  Id. at 95.  The court of appeals noted that “[a] defendant seeking to impeach a witness with evidence of a previous false accusation against a third party must, as a threshold evidentiary matter, produce evidence showing the prior accusation is actually false.”  Id.  The court of appeals concluded that the trial court in the prior trial found that prior outcry was false when it admitted the evidence.  Id.  The court of appeals held that the jury instruction deprived Palmer of impeachment evidence that was “vital to his defense” because the jury’s determination of L.M.’s credibility was necessary for a conviction.  Id. at 96.  Palmer I was thus decided on the grounds that the truth or falsity of L.M.’s prior outcry was a threshold admissibility question which the prior trial court had resolved in favor of admissibility, and thus never should have been presented to the jury.  Palmer was tried and convicted of sexually assaulting L.M. in a trial with numerous testimonial inconsistencies, no eyewitness testimony, and no supporting medical evidence.  Id.  L.M.’s credibility was central to Palmer’s conviction, and evidence of her character for truthfulness was highly relevant.

This appeal presents a different question.  The jury in this consolidated trial acquitted Palmer on charges that he sexually assaulted L.M.  L.M.’s credibility was not crucial to the jury’s determination that Palmer sexually assaulted C.M.  Moreover, in this trial, the court excluded the evidence of the earlier outcry, specifically stating “there’s not been a threshold finding that the allegations were false.”  Palmer’s proffered evidence did not establish that Jill had coached any of her children, nor was it offered to show bias, interest, or motive to fabricate.  See Hammer, 296 S.W.3d at 561 (citing Davis, 415 U.S. at 316, 94 S. Ct. at 1105).  Just as “prior false allegations of rape do not tend to prove or disprove any of the elements of the charged sexual offense,” prior allegations by L.M. that she was sexually assaulted by another person cannot prove or disprove whether Palmer committed the charged offenses against C.M.  See Hammer, 296 S.W.3d at 564.

In excluding the proffered evidence, the trial court relied on both Rules 608(b) and 403, thus exercising its discretion to limit the scope and extent of cross-examination by preventing the introduction of L.M.’s testimony that she was the victim of sexual abuse not once but twice.  We conclude that this exercise of discretion was within the zone of reasonable disagreement.  See Montgomery, 810 S.W.2d at 391.

Palmer argues that the exclusion of L.M.’s prior outcry violated his constitutional rights by depriving him of a fair trial and his right to present a defense.  In this regard, Palmer relies upon Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920 (1967), Chambers v. Mississippi, 410 U.S. 284, 93 S. Ct. 1038 (1973), Crane v. Kentucky, 476 U.S. 683, 106 S. Ct. 2142 (1986), and Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480 (1988).  None of these authorities suggest that the application of Rule 608(b) in this case deprived Palmer of his right to put on a defense or his right to a fair trial generally.  See Washington, 388 U.S. at 22, 87 S. Ct. at 1924–25 (Sixth Amendment precludes “arbitrary rules that prevent whole categories of defense witnesses from testifying on the basis of a priori categories that presume them unworthy of belief”); Chambers, 410 U.S. at 295, 302–03, 93 S. Ct. at 1045–46, 1049–50 (holding that under facts and circumstances of the particular case, exclusion of certain hearsay and application of common-law “voucher” rule deprived defendant of a fair trial, but also acknowledging “the right to confront and to cross-examine is not absolute and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process” and holding does not “signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures”); Crane, 476 U.S. at 687, 106 S. Ct. at 2145 (exclusion of evidence bearing on the voluntariness of confession violated defendant of right to a fair opportunity to present a defense); Olden, 488 U.S. at 230–32, 109 S. Ct. at 482–83 (limitation of cross-examination of complainant about motive to lie failed to accord proper weight to Sixth Amendment right to confront witnesses).  As discussed above, consistent with the Sixth Amendment, the rules of evidence permit cross-examination of a witness about bias, interest, and motive without undue limitation or arbitrary prohibition.  See Hammer, 296 S.W.3d at 561; Tex. R. Evid. 613(b).  Exclusion of evidence offered solely to attack the witness’s general credibility, as Palmer sought to do, does not violate the Confrontation Clause, see Hammer, 296 S.W.3d at 564–65, or the defendant’s right to present a defense, see, e.g., United States v. Scheffer, 523 U.S. 303, 308, 118 S. Ct. 1261, 1264 (1998) (rules excluding evidence from criminal trials do not abridge accused’s right to present defense so long as they are not “arbitrary” or “disproportionate to the purposes they are designed to serve,” i.e., when exclusion has infringed upon weighty interest of accused).

We hold that the trial court did not abuse its discretion in excluding evidence of L.M.’s earlier unrelated accusation of sexual abuse, and we overrule Palmer’s second issue.

Conclusion

          We affirm the judgment of the trial court.

                                                          Michael Massengale

                                                          Justice

Panel consists of Justice Keyes, Sharp, and Massengale

Do not publish.  Tex. R. App. P. 47.2(b).

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[*]        Parts of the record show that this case was tried in the 239th District Court of Brazoria County.  The judgment and other parts of the record show that this case was tried in the 23rd District Court of Brazoria County.  No party has addressed this.  We presume the judgment is correct.  See Light v. State, 15 S.W.3d 104, 107 (Tex. Crim. App. 2000) (“There is also a presumption of regularity of the judgment and the proceedings absent a showing to the contrary, and the burden is on the defendant to overcome this presumption.”).