Opinion filed June 16, 2011

In The

Eleventh Court of Appeals 

__________

No. 11-09-00219-CR

__________

TOMAS LEVAR HILLIARD, Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 19th District Court

McLennan County, Texas

Trial Court Cause No. 2007-2097-C1

M E M O R A N D U M O P I N I O N

The jury convicted Tomas Levar Hilliard of five counts of aggravated sexual assault of a 

child and three counts of indecency with a child and, upon his plea of true to the enhancement 

allegations, assessed punishment at confinement for life and a fine of $10,000 for each count. 

The sentences are to run concurrently except for the sentence in Count VI, which is to run 

consecutively to the sentence in Count I. We affirm. 

Appellant presents two issues for review. In the first issue, appellant asserts that the trial 

court erred in failing to grant his request for a ―Michaels‖ hearing to determine whether the 
2

victim’s recollection was reliable or whether it had been affected or tainted by improper 

investigative procedures. See State v. Michaels, 642 A.2d 1372 (N.J. 1994). Texas courts have

rejected Michaels and have declined to require trial courts to hold such a hearing. Reyes v. State, 

274 S.W.3d 724, 732 (Tex. App.—San Antonio 2008, pet. ref’d); Johnson v. State, No. 10-03-

00134-CR, 2004 WL 2567112, at *3 (Tex. App.—Waco Nov. 10, 2004, pet. ref’d) (mem. op., 

not designated for publication). We agree with the rationale of our sister courts and hold that the 

trial court did not err by refusing to hold a Michaels hearing. Appellant was free to crossexamine the victim and those who interviewed her to challenge the reliability of the victim’s 

recollection and the propriety of the investigative procedures used. And, the jury was free to 

judge the credibility of the witnesses. Appellant’s first issue is overruled. 

In his second issue, appellant asserts that the trial court unduly limited his right to 

confront the witnesses by refusing to allow appellant to introduce evidence that the victim had 

made a false allegation of sexual misconduct against her cousin. Outside the presence of the 

jury, the victim denied making any such allegation against her cousin. Also outside the presence 

of the jury, the victim’s cousin testified that the victim had falsely accused him of raping her.

Appellant relies on the Confrontation Clause of the Sixth Amendment to the United 

States Constitution, which guarantees an accused the right to confront the witnesses against him. 

The exclusion of evidence involving a prior false accusation of sexual activity, when offered – as

it was in this case – to attack the victim’s general credibility, does not violate the Confrontation 

Clause. Hammer v. State, 296 S.W.3d 555, 564-65 (Tex. Crim. App. 2009). The court in 

Hammer held that such evidence may be admissible if offered for some purpose, such as motive 

or bias, other than a propensity attack upon the witness’s general character for truthfulness. Id.

at 565. In this case, appellant offered the evidence to show that the victim ―in the past has made 

a false accusation. . . . It allows the jury to consider the possibility that this particular accusation 

may be false.‖ Appellant further stated that, if the jurors were to believe the victim’s cousin, 

―then they could possibly believe that [the victim] has made another false outcry.‖ The proffered 

testimony was not offered to show the victim’s bias or motive but, rather, was offered to attack 

the victim’s credibility by showing merely that she had made another allegation of sexual 

misconduct (which she denied making) and that the allegation was false. We hold that, pursuant 

to the rationale in Hammer, appellant’s right of confrontation was not violated and that the trial 
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court did not err in refusing to allow the proffered testimony. See TEX. R. EVID. 608(b); 

Hammer, 296 S.W.3d at 564-66. The second issue is overruled. 

The judgments of the trial court are affirmed. 

JIM R. WRIGHT 

CHIEF JUSTICE

June 16, 2011

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel1consists of: Wright, C.J.,

McCall, J., and Hill, J.2

 

1

Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a 

successor by the governor.

2

John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.