## COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02

- 13

- 00532

- CR

THOMAS JEFFERSON

SMALLWOOD, JR. APPELLANT

V.

THE STATE OF TEXAS STATE

----------

FROM THE 396TH DISTR ICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 1343 309R

----------



### OPINION ON APPELLANT’S MOTION FOR REHEARING

----------

A fter considering Appellant’s motion for rehearing, we deny the motion, but

we withdraw our opinion and judgment of April 30

, 2015

, and substitute the

following.

A jury convicted Appellant Thomas Jeffe rson Smallwood Jr. of six counts of

aggravated sexual assault of a child under seventeen years of age and three

counts of sexual assault of a child under seventee n years of age

, all charged in a2 single indictment, and assessed his punishment at fifty years ’ confinement on

each aggravated sexual assault count and twenty years ’ confinement on each

sexual assault count

. The trial court sentenced him accordingly

, order ing the

sentences to be served concurrently

. Appellant brings f ive issues on appeal,

challen ging the sufficiency of the evidence to show the aggravating element for

the six convictions of aggravated sexual assault of a child ( counts one through

four, eight, and nine ) and contending that the State misrepresented the law during

voir dire and that t he trial court abused its discretion by excluding evidence of the

c omplainant ’ s prior rape accusation against a neighbor and the testimony of two

other witnesses. Because the evidence is sufficient to support the jury ’ s verdict

and because the trial court committed no reversible error, we affirm the trial

court ’ s judgment s

.

Brief Facts

Appellant and Complainant’s mother (Mother) had been a couple, had

shared a home with Complainant and her brother, and were the parents of twin

boys, Complainant’s younger h alf

- brothers. Appellant and Mother parted ways

and we nt through a custody battle over the twins

. On July, 4, 2012, Complainant,

who was fourteen years old at the time, was at Appellant ’ s home with her twin

brothers. Complainant and M other were not getti ng along around this time.

Appellant told Complainant that he wanted to put M other in a hole and hire some

Mexican assassins to hurt her. In the same conversation, Appellant suggested3 that Complainant have sex with him to make M other mad, but Complainant

refused his offer.

Later that same month, Complainant, along with her twin brothers, visited

Appellant ’ s parents in El Paso. During this trip, Complainant received messages

from someone who identified himself as “ Jayylo ” through Kik, an application on

he r cell phone. Jayylo sent pictures of his penis to her. She responded by

“ sen [ ding ] inappropriate pictures of [her] boobs. ” She never gave Jayylo her

home address or her real name. Jayylo continued to send more pictures of

himself to her. When Complai nant threatened to stop sending Jayylo pictures, he

threatened to send the photos she had sent him to her school and to the

mailboxes of Mother and her neighbors. Complainant noticed that the

background of one of the photos he sent her resembled a portion of Appellant ’ s

house. Complainant was then suspicious that Appellant was Jayylo.

She confronted Appellant

, but he denied having a Kik account. About an

hour later, Appellant called Complainant back and asked her why he had pictures

of her boobs in his m ailbox. Complainant started crying and told him what had

happened with Jayylo and that he had threatened her. Complainant also told

Appellant ’ s mother why she was crying, and Appellant got mad at Complainant

for telling his mother. Complainant turned fi fteen year s old while she was in El

Paso.

When Complainant returned home from El Paso, she began receiving text

messages from Jayylo sent directly to her cell phone number. Complainant4 noticed that the first six digits of Jayylo ’ s phone number were the sa me as

A p pellant ’ s cell phone number. Jayylo told her that he got her phone number

from one of her friends, which Complainant knew not to be true. When ever

Complainant asked Jayylo who he really was, he would change his story o f how

Complainant was suppos ed to know him and how old he was. Jayylo texted

Complainant almost every day at different times of the day. But she could never

get a response when she called him.

J ayylo continued threatening Complainant and demanded that she send

him more photos, have sex with Appellant, videotape it, and send the video to

Jayylo

. Complainant refused. Jay ylo put one of the photos Complainant had sent

him on a Facebook page he had created and threatened to add all of her friends

to that page. Appellant told Complaina n t that Jayylo was also contacting him

, but

she never saw any of the messages that Appellant claimed to have received

.

Appellant and Complainant spoke about the situation and decided to

acquiesce to J ayylo ’ s demands. Complainant and Appellant had sexual

i ntercourse in Appellant ’ s house while Complainant ’ s twin brothers were asleep.

F ollowing Jayylo ’ s demands

, Appellant and Complainant continued their sexual

relationship. They had sexual intercourse “ eight to eleven times[,] [ m ] aybe more

, ”

from August 201 2 to November 2012. These sexual encounters would occur at

either Appellant ’ s or Complainant’s home.

Complainant testified that she texted Jayylo that it was getting harder for

her to keep these incidents a secret, and shortly after she sen t this text, Ap pellant5 called her and told her that they did not “ have to do it anymore. ” Appellant t hen

told Complainant a story about

a girl who was babysitting this guy ’ s kids, and he ended up raping

her. And then she went to court, and then he pretended to be

someb ody that he wasn ’ t and hit her up on Facebook and that they

met up thinking it was somebody else, and he killed her.

This story scared Complainant. At trial, she testified that Appellant knew people

from Mexico who were in the Mexican Mafia. Although Com plainant testified that

Appellant never specifically threatened her

, she also testified that he made it

clear that if he could hurt Mother, he could hurt Complainant too. In December

2012, Complainant made an outcry to Mother’s friend

. Shortly after ward

, the

decision to call the police was made. Appellant pled not guilty to all counts of an

eighteen

- count indictment alleging that he had committed sexual assault and

aggravated sexual assault on vari ous dates against Complainant.

O utside the presence of th e jury, in an in

- camera hearing, Appellant

presented evidence from Ricky May. May lived in Complainant ’ s neighborhood

around 2008 to 2009. He testified that when he was eighteen years old,

Complainant would contact him “ through phone [and] text messaging

, trying to get

[ him ] to have sexual intercourse with her ” because she was “ horny. ” May refuse d

Complainant ’ s offer

, but he heard that Complainant had told people in their

neighborhood that he had raped her, which he denied. May was never charged

with or arrested for rape. The State objected to May ’ s testimony on hearsay

grounds.6 T HE COURT: Response?

[PROSECUTOR] : Once again, Your Honor, this is an opinion based

upon hearsay. There ’ s no proof that she ever

said these things. And this is the type of

rep utation and opinion evidence that is, I believe,

prohibited under 412 as is relating to sexual

conduct and it ’ s not fitting in one of the categories

that allows for past behavior to be admissible.

The trial court sustained the State ’ s objection

, and May wa s not permitted to

testify in front of the jury.

Appellant also offered testimony f rom Jeannie Redmon ou tside the

presence of the jury. Redmon testified that she had known Complainant for

“ [a]pproximately seven t o eight years. ” Redmon testified that Comp lainant was

“ untruthful ” because (1) she took items that belonged to Redmon ’ s daughter

, told

Redmon that Redmon’s daughter had given her the items when in fact, Redmon’s

daughter had not

, and instructed Redmon’s daughter to similarly lie; (2) she

would tel l Redmon and her daughter that she was dating people whom she was

not dating ; (3) she had said that a boy across the street had raped her ; and

(4) she lied about giving out her phone number to boys at a waterpark when

Redmon asked her if she had done so. Redmon also testified that she thought

her daughter and Complainant had gone to pornographic web sites on Redmon’s

home computer. Appellant offered Redmon ’ s testimony as her opinion on

Complainant ’s truthfulness. The State objected to Redmon ’ s testimony :

We ’ ll object under rule 608 and 609, also 404. I think if this witness

knew [Complainant] presently, we would be legally okay with her

opinion that she ’ s untruthful, but I think four years ago is a little bit too7 remote. And certainly, even if that was a llowed, the rules, specifically

608(b) [,] disallow specific instances of conduct. So we would ob ject

to any specific instances.

Additionally, it sounds like almost all of this is hearsay and,

except for perhaps the opinion as to truthfulness. But the por n use, I

don ’ t think we can say that this witness knows with her own personal

knowledge that it was definitely [Complainant]. I think perhaps she ’ s

basing that off of what her daughter has told her. And the same with

the false claim of rape, she ’ s admitt ed on cross she really does not

know what happened.

The trial court sustained the State ’ s objection s

, and Redmon was not permitted to

testify in front of the jury.

Appellant also presented evidence from Denise Brown o utside the

presence of the jury

. Brown testified that Complainant was friends with her

daughter and that she knew Complainant in 2009 and 2010. Brown testified that

Complainant was untruthful because Complainant (1) spread rumors that Brown ’ s

daughter was pregnant and (2) took some fingernail polish belong ing to Brown ’ s

daughter without permission. Brown also testified that Complainant was

flirtatious with boys and opined that Complainant was promiscuous.

Complainant ’ s friendship with Brown ’ s daughter ended when Brown ’ s daughter

began dating a boy who m Complainant had previously dated, and Complainant

began calling Brown ’ s daughter a “ slut. ” The State objected to Brown ’ s

testimony :

The State would object as to

. . . this witness

. . . having no personal

knowledge of the things that she has r eferenced as far as her basis

for determining this

— [Complainant ’ s] credibility. She ’ s basing it upon

hearsay. So we would object under 608.8 Also, as far as going into specific instances of conduct, she

doesn ’ t

— she did not personally observe them or have personal

knowledge as to them.

Also, we ’ d object under 404, 403 as to her general

characterization of [Complainant ’ s being ] boy crazy,

promiscuous.

. . . [S] he has clearly demonstrated her own bias

towards [Complainant] where she does not apply the standa rd to her

own daughter as she does for [Complainant], even though they ’ re

engaged in the same conduct.

The trial court sustained the State ’ s rule 608 objection.

Sufficiency of the Evidence

In his first issue, Appellant argues that the evidence is insuffic ient to

support the jury ’ s determination that, during the alleged aggravated sexual

assault s

, he

, “ by acts or words placed [ Complainant ] in fear that death or serious

bodily injury would be imminently inflicted on [ her ] or [her mother], ” as alleged in

coun ts one through four, eight, and nine.

In our due

- process review of the sufficiency of the evidence to support a

conviction, we view all the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. 1 This standard gives full play

to the responsibility of the trier of fact to resolve conflicts in the testimony, to

1 Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 ( 1979);

Dobbs v. State , 434 S.W.3d 166, 170 (Tex. Crim. App. 2014)

.9 weigh the evidence, and to draw reasonable inferences from basic facts to

u ltimate facts. 2

The trier of fact is the sole judge of the weight and credibility of the

evidence. 3 Thus, when performing an evidentiary sufficiency review, we may not

re

- evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. 4 Instead, we determine whether the necessary

inferences are reasonable based upon the cumulative force of the evidence when

viewed in the light most favorable to the verdict. 5 We must presume that the

factfinder resolved any confl icting inferences in favor of the verdict and defer to

that resolution. 6

The standard of review is the same for direct and circumstantial evidence

cases; circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor. 7

2 Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs

, 434 S.W.3d at 170.

3 See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979 ); Dobbs , 434

S.W.3d at 170.

4 Isassi v. State , 330 S.W.3d 633, 638 ( Tex. Crim. App. 2010)

.

5 Sorrells v. State , 343 S.W.3d 152, 155 ( Tex. Crim. App. 2011) ; see

Temple v. State , 390 S.W. 3d 341, 360 (Tex. Crim. App. 2013)

.

6 Jackson , 443 U.S. at 326, 99 S. Ct. at 2793; Dobbs , 434 S.W.3d at 170.

7 Dobbs , 434 S.W.3d at 170 ; Hooper v. State , 214 S.W.3d 9, 13 ( Tex. Crim.

App. 2007)

.10 Com plainant testified that Appellant had told her (1) that he knew people in

Mexico associated with the Mexican mafia and that they would kill her and her

mother without the killings being traced back to him and (2) a story about a man

who raped his babysitte r and killed her after she told someone about the rape.

The outcry witness testified that Complainant had reported the Mexica n mafia

threat to her and that Complainant had also told her that Appellant had

threatened to slit Complainant’s throat and leave her in a ditch somewhere.

Appellant relies on Blount v. State 8 and its progeny to argue that the threats

were not imminent because they were conditional. The Blount court found

insufficient the attackers’ telling the victim that if she told, they would co me back

and kill her because the threat was conditional. 9 As t he State points out

, Blount

relied on a former version of the sta tute that required not only that the threat was

made but that it “ compelled submission to the rape. ” 10 That language was

removed from the sta tute when it was later amended

, and consequently, as the

State argues, it does not apply to this offense. 11

8 542 S.W.2d 164 (Tex. Crim. App. 1976)

.

9 Id. at 165

– 66.

10 Id. at 165 (quotation marks omitted)

.

11 See Tex. Penal Code Ann. § 22.021 (West Supp. 2014) (providing

elements of aggravated sexual assault); Nichols v. State , 692 S.W.2d 178, 180

(Tex. App.

— Waco 1985, pet. ref’d) (discussing the 1981 statutory amendment

removin g the requirement of compelled submission).11 Further, a child cannot consent to sexual contact or intercourse. 12 There is

no element of compulsion required to be proved in the aggra vated sexual assault

or sexual assault of a child. 13 Be cause Complainant was a child and not

competent to consent to sexual conduct, the threat went only to the aggravating

element that elevated the offense to a higher grade of felony and therefore a

highe r range of punishment. 14

The unique facts of this case require us to look at the threats as continuing

during the commission of the assaults over an extended period of time.

Complainant said in her outcry and repeated at trial that Appellant

— who for most

o f the period of the offense s was a person lurking in the background of her life

—

made various death threats to keep her participating silently in the sexual

relationship

. She understood these threats to be continuing threats of imminent

harm at any time

. 15 The record supports that interpretation under the unique

facts of this case

. We therefore overrule Appellant ’ s first issue.

12 In re B.W.

, 313 S.W.3d 818, 823

– 24 (Tex. 2010)

.

13 See i d. ; see also Tex. Penal Code Ann. § 22.011(a)(2) (West 2011),

§ 22.021(a)(1)(B), (2).

14 Compare Tex. Penal Code Ann. § 22.011(f) (West 2011) (providing that

s exual assault is a second

- degree felony)

, and id. § 12.33 (providing range of

punishment for second

- degree felonies)

, with id. § 22.0 2 1(a)(2) (A)(ii) , (e)

(providing that aggravated assault as alleged in this case is a first

- degree felony)

, and id. § 12.3 2 (providing range of punishment for first

- degree felonies)

.

15 See, e

. g.

, Curry v. State

, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)

(discussing the continuing nature of an abduction and holding that because a12 Alleged Misstatement of the Law in Voir Dire

In his second issue, Appellant argues that the State misstated the law

during voir di re and that this misstatement violated his rights under the Sixth and

F ourteenth Amendments to the United States Constitution and s ections t e n and

n ineteen of a rticle I of the Texas Constitution

. To preserve a complaint for our

review, a party must have p resented to the trial court a timely request, objection,

or motion that states the specific grounds for the desired ruling if they are not

apparent from the context of the request, objection, or motion. 16 Further, the trial

court must have ruled on the req uest, objection, or motion, either expressly or

implicitly, or the complaining party must have objected to the trial court’s refusal

to rule. 17 We have carefully examined those portions of the record to which

Appellant directs us concerning what he describ es as misrepresentations of the

law to the jury panel during voir dire. At no point did Appellant object or otherwise

call his complaint to the attention of the trial court. Consequently, he did not

preserve this issue for appellate review. W e overrule Appellant ’ s second issue.

witness testified that he saw Curry with a gun tha t night, “the jury could have

believed that Curry had that gun and used it during the course of the abduction to

prevent [the complainant’s] liberation” and “the jury was free to disbelieve [the

complainant’s] testimony that Curry did not have a gun and th at Curry did not

threaten him”).

16 Tex. R. App. P. 33.1 ( a) ( 1); Everitt v. State , 407 S.W.3d 259, 262

– 63

(Tex. Crim. App. 2013); Sanchez v. State , 418 S.W.3d 302, 306 (Tex. App.

— Fort

Worth 2013, pet. ref’d).

17 Tex. R. App. P. 33.1 ( a) ( 2); Everitt , 407 S.W.3d a t 263.13 Excluded Evidence About Complainant

In his third

, fourth

, and fifth issue s

, Appellant argues that the trial court

reversibly erred by refusing to allow him to present the testimony of May,

Redmon, and Brown that C omplainant had m ade a prior false rape allegation

against a neighbor and that she was untruthful

. Judge Cochran has explained,

Trials involving sexual assault may raise particular evidentiary

and constitutional concerns because the credibility of both the

complainant and defendant is a central, often dispositive, issue.

Sexual assault cases are frequently “ he said, she said ” trials in

which the jury must reach a unanimous verdict based solely upon

two diametrically different versions of an event, unaided by any

physical, scientific, or other corroborative evidence. Thus, the Rules

of Evidence, especially Rule 403, should be used sparingly to

exclude relevant, otherwise admissible evidence that might bear

upon the credibility of either the defendant or complainant in such

“ he said, she said ” cases. And Texas law, as well as the federal

constitution, requires great latitude when the evidence deals with a

witness ’ s specific bias, motive, or interest to testify in a particular

fashion.

But, as the Supreme Court noted in Davi s v. Alaska

, there is

an important distinction between an attack on the general credibility

of a witness and a more particular attack on credibility that reveals

“ possible biases, prejudices, or ulterior motives of the witness as

they may relate directly t o issues or personalities in the case at

hand. ” Thus, under Davis

, “ the exposure of a witness ’ motivation in

testifying is a proper and important function of the constitutionally

protected right of cross

- examination. ” However, as Justice Stewart

noted in concurrence, the Court neither held nor suggested that the

Constitution confers a right to impeach the general credibility of a

witness through otherwise prohibited modes of cross

- examination.

Thus, the Davis Court did not hold that a defendant has an ab solute

constitutional right to impeach the general credibility of a witness in

any fashion that he chooses. But the constitution is offended if the

state evidentiary rule would prohibit him from cross

- examining a14 witness concerning possible motives, bias, and prejudice to such an

extent that he could not present a vital defensive theory. 18

A witness ’ s credibility may be attacked in three ways: opinion or reputation

for general truthfulness or untruthfulness and cross

- examination on specific

instances of c onduct that establish bias, self

- interest, or motive for testifying as

he or she did. 19 Opinion evidence is not the same as reputation evidence. 20 As

this court has explained,

Reputation witnesses ’ testimony must be based on discussion with

others about th e subject, or on hearing others discuss the person ’ s

reputation, and not just on personal knowledge. Rule 405 requires

only “ substantial familiarity ” with the reputation of the accused. 21

Reputation evidence, then, must necessarily be grounded in hearsay. 22

An objection that the testimony of reputation evidence is hearsay and not based

on personal knowledge thus will not lie. 23 Opinion testimony is governed by rule

of evidence 701 and must be based on personal observation. 24

18 Hammer v. State

, 296 S.W.3d 555, 561

– 63 (Tex. Crim. App. 2009)

(footnotes omitted).

19 Tex. R. Evid. 405

, 608.

20 See Tex. R. Evid. 405, 701

.

21 Ferrell v. State

, 968 S.W.2d 471, 474 (Tex. App.

— Fort Worth 1998

, pet.

ref’d ) (citations omitted).

22 See id. ; s ee also Tex. R. Evid. 405.

23 See Tex. R. Evid. 405; Ferrell , 968 S.W.2d at 474.

24 Tex. R. Evid. 701.15 Within this general framework, J udge Cochran, speaking for the

unanimous Hammer c ourt, has explain ed why Texas, unlike many other states,

does not allow a defendant in a sexual assault case to impeach the complainant

with evidence of prior false accusations :

The theory for admitting prio r 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.

Therefore, Texas, unlike s ome jurisdictions, has not created a

per se exception to Rule 608(b) ’ s general prohibition against

impeachment with specific instances of conduct to admit evidence of

the complainant ’ s prior false allegations of abuse or molestation.

The inferential chain of logic that is barred by Rule 608(b) is this:

The witness lied to his employer ( or did some specific act of

dishonesty )

That specific conduct proves dishonest character;

Therefore, the witness is generally dishonest and should not

be believed in this ca se.

Applied to prior false accusations, the barred evidentiary chain is

this:

Complainant made a prior false accusation;

That specific conduct proves dishonest character;

Therefore, the complainant is generally dishonest and should

not be believed in this case.16 This is precisely the prohibited propensity chain of logic

—

“ Once a thief, always a thief, ” “ Once a liar, always a liar ”

— that

underlies both Rules 404(b) and 608(b). A sexual assault

complainant is not a volunteer for an exercise in character

assassi nation. Several federal courts have held that exclusion of

this evidence, offered to attack the victim ’ s general credibility, does

not violate the Confrontation Clause.

If, however, the cross

- examiner offers evidence of a prior false

accusation of sexual activity for some purpose other than a

propensity attack upon the witness ’ s general character for

truthfulness, it may well be admissible under our state evidentiary

rules.

For example, in Billodeau v. State

, we held that the trial court

should have admi tted evidence that the child complainant in that

aggravated sexual assault prosecution had made threats to falsely

accuse two neighbors of sexual molestation. We held that such

evidence supported the defensive theory that the complainant ’ s

motive in accus ing the defendant of sexual molestation was “ rage

and anger ” when he was thwarted. Evidence of threats to accuse

others of sexual molestation when he displayed “ rage and anger ” at

being thwarted is some evidence of a common motive for accusing

the defenda nt of sexual molestation. The chain of logic is as follows:

The victim makes false accusations in certain circumstances

and for certain reasons;

Those circumstances and reasons are present in this case;

Therefore, the victim made a false accusation in thi s case.

One might even call this modus operandi evidence admissible

under Rule 404(b). Evidence of other acts or wrongs may be

admissible under Rule 404(b) to prove such matters as motive,

intent, scheme, or any other relevant purpose except conduct in

co nformity with bad character. Even “ the doctrine of chances ” has

been invoked as a possible basis for admitting evidence of a victim ’ s

prior false accusation of rape. Similarly, evidence of a victim ’ s prior

sexual activity may be admissible under Rule 412

, the Texas Rape

Shield Law, when offered to establish the victim ’ s motive or bias

against the defendant.17 In sum, several different state evidentiary rules permit the use

of prior false accusations when offered to show the witness ’ s bias or

motive or for some other relevant, noncharacter purpose. The

Confrontation Clause mandate of Davis v. Alaska is not inconsistent

with Texas evidence law. Thus, compliance with a rule of evidence

will, in most instances, avoid a constitutional question concerning the

a dmissibility of such evidence. 25

We now examine the case at bar.

Prior Rape

Appellant argues that the trial court abused its discretion by excluding

May’s testimony that he had heard a rumor that Complainant was telling people

that he had sexually assaulted her and Redm o n’s testimony pertaining to the

alleged incident

. Appellant offered May’s testimony under rule of evidence

404(b)

. 26 While Appellant now argues that the trial court ’ s ruling abridged certain

of his constitutional rights

, at trial he spoke on ly o f credibility and Rule 404(b).

Appellant ’ s complaints at trial do not conform to his constitutional complaints on

appeal ; we therefore do not address his constitutional complaints. 27

Additionally, May ’ s testimony dealt with rumors on the street; it did not

constitute testimony of Complainant ’ s reputation for truthfulness, nor were his

claims that he had heard that she was spreading rumors in any way

25 Hammer

, 296 S.W.3d at 564

– 66 (footnotes omitted).

26 Tex. R. Evid. 404(b).

27 See Tex. R. App. P. 33.1(a)(1) ; Lovill v. State , 319 S.W.3d 687, 691

– 92

(Tex. Cri m. App. 2009)

.18 substantiated to provide a basis for an opinion that she was not worthy of belief

under oath. And to the extent that his testimony was intended to be evidence of

prior false accusations of sexual assault, such testimony is not admissible for the

purpose of showing her character co nformity or propensity to lie. 28

Although Appellant also argues that the evidenc e was admissible to show

motive and modus operandi, May candidly admit ted that Complainant never

accused him to his face of raping her. His belief that she had accused him was

based on rumors that he had heard. The record does not establish confirmation

of May’s belief that she falsely accus ed him of rape. Nor do the rumors he heard

suggest a motive for falsely accusing Appellant or a modus operandi. May said

that Complainant would ask him to hav e sex with her, and he refused. But we

cannot discern how the rumors he heard that she was accusing him of rape were

ever verified. The record before this court therefore does not establish the

admissibility of this evidence of purported false accusations of rape under rule

404(b).

At trial, Appellant explained in seeking admission of the false accusation

testimony, “the false claim of rape is going to credibility .” We hold that the

rumors of false rape accusations were not admissible, and based on the record

before us, that the trial court did not abuse its di scretion in denying Appellant’s

28 See Hammer , 296 S.W.3d at 564

.19 request to present this evidence before the jury. We overrule Appellant’s third

issue.

Redmon ’s and Brown ’s Opinion Testimony

In his fourth and fifth issues, Appellant complains of the exclusion of the

testimony of Redmon and Brown concerning their opinions of Complainant’s

credibility. As we understand the record, Appellant appears to have offer ed

these opinions by having the women explain specific acts that the y suspected

had occurred and speculat e on others. He did not offer their testimon y on any

constitutional basis. We therefore do not address the constitutional arguments

he raises on appeal

. 29

Redmon ’ s testimony was based on her belief that Complainant had lied

and had told Redmon ’ s daughter to lie about having give n Complainant things

that Complainant had stolen from Redmon ’ s daughter. Redmon also believed

that Complainant had lied to her and to her daughter about dating, smoking

marijuana, and being raped. Appellant explained to the trial court that he was

offeri ng Redmon ’ s testimony as “ possible opinion testimony on truthfulness. ”

Brown believed that Complainant had spread untruthful rumors about her

daughter and that she had stolen her daughter ’ s nail polish. We are not clear on

the legal basis for which Appell ant offered this evidence, other than as an opinion

29 See Tex. R. App. P. 33.1(a)(1); Lovill

, 319 S.W.3d at 691

– 92

.20 of Complainant ’ s truthfulness. Judge Keasler has explained for the Texas Court

of Criminal Appeals

,

[A] less common notion of error preservation comes into play in this

case, although certainly not a nov el one. Professors Goode,

Wellborn and Sharlot refer to it as “ party responsibility. ” They

explain it this way:

To the question, which party has the responsibility

regarding any particular matter, it is infallibly accurate to

answer with another question : which party is

complaining now on appeal? This is because in a real

sense both parties are always responsible for the

application of any evidence rule to any evidence.

Whichever party complains on appeal about the trial

judge ’ s action must, at the ear liest opportunity, have

done everything necessary to bring to the judge ’ s

attention the evidence rule in question and its precise

and proper application to the evidence in question.

The basis for party responsibility is, among other things, Appellate

Rule 33.1. It provides that as a prerequisite to presenting a

complaint for appellate review, the record must show that the party

“ stated the grounds for the ruling that ( he ) sought from the trial court

with sufficient specificity to make the trial court aware of the

complaint. ” So it is not enough to tell the judge that evidence is

admissible. The proponent, if he is the losing party on appeal, must

have told the judge why the evidence was admissible.

We recently discussed this notion in Martinez v. State

. There,

the defendant moved to suppress oral statements due to the State ’ s

failure to comply with Art. 20.17. The State argued for the first time

on appeal that Art. 20.17 did not apply. We concluded that the State

forfeited this argument by failing to b ring it to the trial judge ’ s

attention. We explained that “ both Texas Rule of Appellate

Procedure 33.1 and Texas Rule of Evidence 103 are ‘ judge

protecting ’ rules of error preservation. The basic principle of both

rules is that of ‘ party responsibility. ’ ” We recognized that “ the party

complaining on appeal (whether it be the State or the defendant)

about a trial court ’ s admission, exclusion, or suppression of evidence

must, at the earliest opportunity, have done everything necessary to

bring to the judge ’ s attention the evidence rule or statute in question21 and its precise and proper application to the evidence in question. ”

The issue, we said, “ is not whether the appealing party is the State

or the defendant or whether the trial court ’ s ruling is legally ‘ correct ’

in every sense, but whether the complaining party on appeal brought

to the trial court ’ s attention the very complaint that party is now

making on appeal. ”

Similarly, in Willover v. State

, the defendant sought to admit

two videotaped interviews of the victim. At trial,

it ( was ) clear that, although ( the defendant ) did not

actually recite the specific rule of evidence he was

relying upon, ( he ) sought to admit the videotapes for

impeachment purposes. ( He ) did not argue, nor was

there any discussi on at trial, that the tapes were not

hearsay or that the videotapes were admissible under

any exception to the hearsay rule other than Article

38.071 or for impeachment purposes.

On appeal, the defendant argued for the first time that the

videotapes were not hearsay. We relied on the notion of “ party

responsibility ” to reject this argument because “ (i) n order to have

evidence admitted under a hearsay exception, the proponent of the

evidence must specify which exception he is relying upon. ” It was

up to t he defendant, we said, and “ not the trial court, to specify

which exception to the hearsay rule he was relying upon or to

specify how the evidence was not hearsay. ”

In some cases, we have applied the “ party responsibility ”

theory without using those preci se words. In Clark v. State

, the

State presented the testimony of Dr. James Grigson that the

defendant would be a future danger. The defendant sought at trial

to introduce a letter and accompanying report which listed eleven

individuals convicted of capi tal murder whose sentences had later

been commuted or reduced. In several of those cases, Dr. Grigson

had predicted that the individual would be a future danger. The trial

court refused to admit the evidence.

On appeal, the defendant argued that the exc luded evidence

was admissible to impeach Dr. Grigson and show that his prior

future dangerousness predictions had turned out to be incorrect.

But the defendant had not articulated this basis for admission at trial.

At trial, he had argued the evidence wa s admissible to impeach22 statements that Dr. Grigson had made in Lubbock County. The

State had objected that the impeachment went to a collateral matter,

and the trial judge had agreed.

We rejected the defendant ’ s argument on appeal because he

“ did not cl early articulate ” that he wanted to admit the evidence to

demonstrate Grigson ’ s past mistakes in predicting future

dangerousness. We said that the trial judge “ never had the

opportunity to rule upon ( the defendant ’ s ) appellate rationale. ” Since

the defen dant “ did not sufficiently clearly expressly offer the

evidence for the purpose which he now claims on appeal, ” that

argument could not be raised on appeal.

Finally, in Jones v. State

, the defendant sought at trial to admit

the grand jury testimony of a w itness who asserted her Fifth

Amendment privilege against self

- incrimination and refused to

testify. The State objected, claiming hearsay. We concluded that

the defendant failed to preserve error because he never specified

which portions of the witness ’ s testimony he wanted to admit into

evidence. We said:

The trial court need never sort through challenged

evidence in order to segregate the admissible from the

excludable, nor is the trial court required to admit only

the former part or exclude only the l atter part. If

evidence is offered and challenged which contains

some of each, the trial court may safely admit it all or

exclude it all, and the losing party, no matter who he is,

will be made to suffer on appeal the consequences of

his insufficiently sp ecific offer or objection. In this case,

because the trial court chose to exclude the evidence,

appellant is the party adversely affected by his own

default. Because appellant failed to specify which

portion of the transcript he intended to introduce int o

evidence, the court was presented with a proffer

containing both admissible and inadmissible evidence.

When evidence which is partially admissible and

partially inadmissible is excluded, a party may not

complain upon appeal unless the admissible evidenc e

was specifically offered.23 Application

In this case, Reyna argued to the trial judge that the evidence

should be admitted for “ credibility. ” He said that he was “ not offering

it to prove the truth of the matter asserted ” and “ not offering it to go

into her sexuality. ” Instead, he argued, “ I ’ m offering it to

demonstrate that as to prior sexual activities, that she made

allegations that there were prior sexual allegations, and recanted. ”

Reyna did not cite to any rules of evidence, cases, or

constitutio nal provisions. Reyna ’ s references to “ the truth of the

matter asserted ” reflect that he was arguing that the evidence was

not hearsay under Evidence Rule 801(d). His claim that he was not

offering it “ to go into her sexuality ” reflects his argument that the

evidence should not be excluded under Evidence Rule 412(b).

These arguments are both based on the Rules of Evidence.

Reyna ’ s reference to “ credibility ” could be a reference to either the

Rules of Evidence or the Confrontation Clause.

Reyna told the trial judge that the purpose of admitting the

evidence was to attack the victim ’ s credibility, but he did not provide

the basis for admitting the evidence. He could have been relying on

the Rules of Evidence or the Confrontation Clause. It was up to the

judge to discern some basis for admitting the evidence.

We have said that “ ( t ) he purpose of requiring ( an ) objection is

to give to the trial court or the opposing party the opportunity to

correct the error or remove the basis for the objection. ” When a

defendant ’ s objection encompasses complaints under both the

Texas Rules of Evidence and the Confrontation Clause, the

objection is not sufficiently specific to preserve error. An objection

on hearsay does not preserve error on Confrontation Clause

grounds

.

Although this case involves a proffer of evidence rather than

an objection, the same rationale applies. Reyna did not argue that

the Confrontation Clause demanded admission of the evidence.

Reyna ’ s arguments for admitting the evidence could refer to e ither

the Rules of Evidence or the Confrontation Clause. His arguments

about hearsay did not put the trial judge on notice that he was

making a Confrontation Clause argument. Because Reyna “ did not

clearly articulate ” that the Confrontation Clause demand ed

admission of the evidence, the trial judge “ never had the opportunity24 to rule upon ” this rationale. As the losing party, Reyna must “ suffer

on appeal the consequences of his insufficiently specific offer. ”

Reyna did not do “ everything necessary to bri ng to the judge ’ s

attention the evidence rule or statute in question and its precise and

proper application to the evidence in question. ” 30

In the case now before this court, Appellant offered the evidence on the

vague basis of “possible” opinion testimony

. He did not sustain his burden of

explaining to the trial court on the record

, and by extension to us, why Redmon’s

and Brown’s testimony was admissible

— whether under an evidentiary rule or

statute, as an exception to an evidentiary rule or statute, or u nder a constitutional

provision. We therefore overrule Appellant ’ s fourth and fifth issues.

Conclusion

Having overruled Appellant ’ s five issues on appeal, we affirm the trial

court ’ s judgment s

.

/s/ Lee Ann Dauphinot

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.

PUBLISH

DELIVERED: August 6, 2015

30 Reyna v. State

, 168 S.W.3d 173, 176

– 79 (Tex. Crim. App. 2005)

(citations omitted).