TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-04-00130-CR

NO. 03-04-00131-CR

Derek Rice, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT

NOS. 5020400 & 2024170, HONORABLE FRED A. MOORE, JUDGE PRESIDING

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

A jury found appellant Derek Rice guilty of aggravated kidnapping and aggravated

sexual assault. See Tex. Pen. Code Ann. § 20.04 (West 2003), § 22.021 (West Supp. 2005). The

district court assessed punishment in both cases, enhanced by a previous felony conviction, at life

imprisonment. In his only point of error, appellant complains that the trial court erroneously

excluded evidence tending to impeach the complaining witness. We will overrule this contention

and affirm the convictions.

The complainant was married to appellant at the time of the offenses, but divorce

proceedings were pending and they were living apart. She was employed by a janitorial service, and

on the night in question was working alone in a building occupied by a construction supply company
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in Pflugerville. The complainant testified that appellant entered the building through the unlocked

door, confronted her, and seized her in a “headlock.” He then took her to a storage area, removed

most of her clothing, and forced her to engage in anal and oral sex acts. When the complainant

resisted, appellant placed a strap around her neck and began to strangle her. Appellant then tied the

complainant’s hands with a shoelace, put a shirt over her head, and took her to his car. He drove her

to a hotel in Manor where he was living, took her inside, and continued to sexually assault her. The

complainant escaped when appellant fell asleep. The complainant’s account was corroborated by

other evidence, including the testimony of the officer who responded to the complainant’s call and

the nurse who conducted the sexual assault examination.

Appellant testified that he and the complainant planned the meeting at her workplace.

He said that she consented to all the sexual acts, both at the office building and in his hotel room.

He denied strangling the complainant but admitted tying her hands, which he also said was done with

her consent. 

Appellant claims that his Sixth Amendment confrontation right was violated because

the trial court refused to admit evidence showing that the complainant had a bias or motive for

testifying against him. Appellant sought to prove that in 1999, the complainant wrote two letters to

the Bexar County District Attorney’s office recanting an accusation of sexual assault she had made

against appellant in that county. He also sought to prove that the complainant testified at a bond

reduction hearing in the Bexar County case that her allegations against appellant were false. The

record reflects that despite these recantations by the complainant, appellant pleaded no contest in the

Bexar County cause pursuant to a plea bargain for deferred adjudication, which was later revoked.
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As part of the Sixth Amendment confrontation right, a defendant must be given great

latitude to show facts tending to establish ill feeling, bias, motive, or animus on the part of a witness

testifying against him. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986); Davis v. Alaska, 415

U.S. 308, 316-17 (1974). Rule 613(b) recognizes this right by permitting impeachment of a witness

by proof of circumstances or statements showing a bias or interest on the part of the witness. Tex.

R. Evid. 613(b). Appellant relied on rule 613(b) in the trial court, but did not mention the Sixth

Amendment. The complaint on appeal must comport with the trial objection. See Rezac v. State,

782 S.W.2d 869, 870 (Tex. Crim. App. 1990); Tex. R. App. P. 33.1. Even constitutional error may

be waived by the failure to object. See Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App.

1990). Even if we assume that appellant’s reliance on rule 613(b) was sufficient to preserve his

constitutional claim, we conclude that the evidence in question did not demonstrate that the

complainant had a bias or motive to testify against appellant. Therefore, the exclusion of the

evidence did not violate either the Sixth Amendment or the rules of evidence.

Appellant’s argument is premised on the assumption that the complainant’s letters

and testimony at the bail hearing proved that the Bexar County accusation was false. See Lape v.

State, 893 S.W.2d 949, 958 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d) (holding evidence

of previous false accusation against defendant admissible to show witness’s bias); Thomas v. State,

669 S.W.2d 420, 423 (Tex. App.—Houston [1st Dist.] 1984, pet. ref’d) (same). But appellant

pleaded no contest in the Bexar County case, and the trial court could reasonably conclude that it was

the complainant’s recantation, and not her original accusation, that was false. Under the

circumstances, the evidence that the complainant had sought to recant the previous accusation of
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sexual assault was not a circumstance tending to show that she had a bias or improper motive for

testifying against appellant in the present cause. See Hughes v. State, 850 S.W.2d 260, 263 (Tex.

App.—Fort Worth 1993, pet. ref’d) (holding that without a showing they were false, witness’s

previous accusations against defendant did not demonstrate bias).

It could be argued that regardless of where the truth might lie, the mere fact that the

complainant had accused appellant of sexual assault only to recant later demonstrated that she was

not a credible witness. But such an argument would be an attack on the complainant’s general

character for truthfulness, and the use of specific instances of conduct for that purpose is

impermissible. Tex. R. Evid. 608(b);see Dixon v. State, 2 S.W.3d 263, 271 (Tex. Crim. App. 1999)

(op. on reh’g) (discussing distinction between impeachment of witness’s character and impeachment

based on witness’s bias or interest); Gonzales v. State, 929 S.W.2d 546, 549 (Tex. App.—Austin

1996, pet. ref’d) (same).

Finding no error in the trial court’s ruling, we overrule the point of error and affirm

the judgments of conviction.

__________________________________________

W. Kenneth Law, Chief Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: December 1, 2005

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