NO. 07-04-0383-CR IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL B DECEMBER 21, 2005

______________________________ CALVIN DEWAYNE COFER, APPELLA NT

V. THE STATE OF TEXAS, APPELLE E

_________________________________ FROM THE 7 TH DISTRICT COURT OF SMITH COUNTY; NO. 007-1 754-03; H ONORABLE KERRY L . RUSSEL L, JUDGE

_______________________________ Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORAND UM OPINION Appella nt, Calvin DeWayne Cofer, appeals his convi ction for aggravated sexual assaultof

a child and his sentence of 35 years i ncarceration in the Institutional Division of the Texa s Departm ent of Cri minal Ju stice. Weaffirm. Background Appellant

was the stepfather

of the vi ctim, K.M.K ., and wa s living in the h ome with the victim, her mother, an d her brothe r for appro xi mat ely five years. In August 2003,1 Further reference to the Texas Rules of Evidence will be by reference to “Rule __.” 2 K.M.K. told a teacher that her stepfather had been sexual ly assaulting her; K.M.K. told the teacher that appellant began sexually assaulting her in April 2003 wh en she was 13 yea rs old, and thathe had assaulted her on more than one o ccasion. After the teacher reported the allegations to the authorities, appellant was charged with aggravated sexual assault of a child.
Attrial, appellant attempted to call the victim’s mother to testify, however, the trial court ruled a portion of

her testimony as inadmissible under Texas Ru le of Evidence 412, commonlyreferred as the “rape shield law.” See T EX
. R. E VID . 412. 1 Specifically, the court ruled that the mother would not be allowed to testify about the victim’s self-stimulation nor the victim’s sexual conduct with two other juvenil es. Although the victim’s mother was not allowed to testify about the victim’s sexual history, she was allowed to testify that the victim has a reputation for untruthfulness. Further, appellant presented the victim’s aunt and uncle who testified that it was their opinion that the victim wa s untruthful. Nevertheless, the jury found appellant guilty and assessed a puni shment of 35 years incarceration in the Instituti onal Di vision of the Texas Depar tment of C riminal Justice. App ellantpresentsone issu e. Appel lant con tends tha t the tria l court erred i n excluding t he victim’s mother’s testimony under Rule 412 regarding the victim’s prior sexual history. We affirm.2 Appellant faile d to argue how the excluded testimony was required by the constitut ion. Thu s, this ar gument is

not befo re us for r

eview. T EX
. R. A PP
. P. 33.1. 3 Exclusion of Testimony
A trial c ourt’s decision to admit or exclude evidence is reviewed under an a bus e of discreti on standa rd. See Green v. State , 934 S.W.2d 92, 101-02 ( Tex.Cri m.App. 19 96); Montgomer

y v. State , 810 S.W. 2d. 372, 390 (Tex .Crim.App . 1990) (o p. on reh’g ). A reviewing court should not reverse a tr ial judge whose ruling was within the zone of reasonable disagre ement. Green , 934 S.W.2d at 102; see also Montgomer y , 810 S.W.2d at 391.
Under

Rule 412(b), evidenc e of specif ic instances of past sexual behavior is not admissible unless it meets a two prong test. Under the first prong, the evidence must: (a) be necessa ry to rebu t scienti fic or med ical evi dence off ered by th e Stat e; (b) be of past sexual behavior with the accused that is offered to show consent of the victim; (c) relate to motive or bias of the victim; (d) be admissible for impeachment under Rule 609; or (e) be constitution ally required to be admitted. Ad ditionally, under the second prong, the probative value of the evidence must outweigh t he danger of unfair p rejudice. Rule 41 2(b)(2). In thi s case, appellant requested a Rule 412 h earing to determine the admissibility of the vi ctim’s mother’stestimon y. See Rule 412(c). During the hearing, appellan t contended that the testi mony was admissib le becau se it rel ated tomotive o r bias of the victim, and that the testimony’s admission was constitutionally required. 2 Appellant contends that the evidence was rele vant to show that victim and another of the State’s witnesses previously engaged in sexual contact and were motiva ted to lie, presumab ly to con ceal her activity3 On appeal, appellant further contends that the victim was motivated to testify falsely to remove appellant from the household. However, appel lant’s contention on appeal does notcorrespond to his objection at the Rule 412 hearing. Hence, he has failed to preserve error on this contenti on. T EX
. R. A PP
. P. 33.1; See Goff v. S tate , 921 S.W.2d 537, 551 (Tex.Cri m.App. 19 96). 4 with the State’s witness. 3 The trial court ruled that the testimony was protected, i.e. inadmissible, under Rule 412 and further determined that appellant had failed to show how the probative value of the testimony outweighed the danger of unfair prejudice. Since the record shows that the trial court did not believe that a ppellant had met its burden to show the probative value of the testimony, we will assume without deciding, that the testimony met the first prong of Rule 412, and will review the trial court’s decision on t h e second prong for abuse of

discreti on. Appellant

offered the mother’s testimony r e garding the victim’s sexual history as probative of the victim’s motive to lie. Howeve r, appell ant had t hree othe r witness es testify
as t o their opinion of the victim’s truthfulness, and thus, was a ble to put the issue of truthfulness before the jury. Further, the victim testified and was subject to crossexamina tion by a ppellan t.
In contrast, evidence of the sexual history of a victim is to be highly scrutinized for its probativ e value. Allen v. State , 700 S.W.2d 924, 929 (Tex.Cr im .App.198 5); Burks v. State , 40 S.W.3d 698, 699(Tex.Ap p.–Waco 2 001, p et. ref’d). In sexual assault prosecution, the "rape

shield law" pro tects comp lainant' s previous sexual conduct from publicexposu re excep t in limi ted circu mstances, and atte mpts to avoid abusive, embarrassing, and irre levant i nquiries into thevictim’s

private life. Wofford v. State , 9035

S.W.2d 796, 798 ( Tex.App.–Dallas 1995, pet. ref’d). When the cumulative nature of the excluded testimony i s compared to the risk of unfair prejudice to the victim, we concl ude that the trial court’s ruling on the testimony was withi n the zone of reasonab le disagree ment. Thus, we conclude that the excluded testimony of the vi ctim’s se xual hi story
was cumulative of the opinion testimony of her untruthfulness and , th erefore, held little probative value. Further, the trial court did not ab use its discretion in excluding the mother’s proposed testimony of the victim’s sexual history. We overrule appellant’s issue.

Conclusion Having o verruled appella nt’s issu e, we affi rm.

Mackey K. Hancock Justice

Do not pu blish.