COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00253-CR

Joe Dale Johnson

v.

The State of Texas

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§

§

§

§

From the 89th District Court

of Wichita County (48,790-C)

February 14, 2013

Opinion by Justice Dauphinot

(nfp)

JUDGMENT

This court has considered the record on appeal in this case and holds that 

there was error in the trial court’s judgment. It is ordered that the judgment of the 

trial court is reversed as to the indecency with a child by contact conviction and 

sentence, that that conviction and sentence are set aside, and that Appellant is 

acquitted of Count Three of the indictment. It is further ordered that the trial court’s 

judgment is reversed as to the two aggravated sexual assaults alleged in Counts 

One and Two of the indictment, and this case is remanded to the trial court for a 

new trial on those two counts only.
2

SECOND DISTRICT COURT OF APPEALS

By_________________________________

 Justice Lee Ann Dauphinot
3

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00253-CR

JOE DALE JOHNSON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1

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A jury convicted Appellant Joe Dale Johnson of two counts of aggravated 

sexual assault of a child and one count of indecency with a child, enhanced, and 

assessed his punishment at life imprisonment. The trial court sentenced him 

accordingly. In three issues, Appellant argues (1) that the evidence is insufficient to 

support his conviction for indecency with a child by contact because such alleged 

 

1See Tex. R. App. P. 47.4.
4

contact is subsumed in the first count of aggravated sexual assault of a child and 

convictions for both violate double jeopardy protections; (2) that the trial court 

abused its discretion by excluding evidence that the complainant had sexually 

assaulted his younger sister; and (3) that the trial court abused its discretion by 

admitting evidence of Appellant’s thirty-year-old prior conviction at the guilt phase of 

trial. Because the evidence is insufficient to support both Count One and Count 

Three, we reverse the trial court’s judgment as to Count Three, set aside Appellant’s 

conviction and sentence for indecency with a child by contact, and enter a judgment 

of acquittal on Count Three. Because the trial court reversibly erred by refusing to 

allow Appellant to correct a confusing or misleading impression on the jury by 

putting on evidence of the complainant’s prior, sexual misconduct, we reverse the 

trial court’s judgment as to Counts One and Two and remand this cause to the trial 

court for a new trial on those counts.

Background Facts

Complainant H.H. was a twelve-year-old boy who was participating in courtordered counseling for sexually molesting his ten-year-old sister over several years. 

He had also been caught shoplifting and had strained relationships with his parents. 

Appellant, a man in his fifties and a board member of the church that he and the 

complainant attended, had previously been convicted of a sexual offense against a 

teenage boy thirty years before in Kansas. Appellant and the complainant spent 

time together, and the complainant accepted work mowing Appellant’s and other 

church members’ lawns for pay. The complainant testified that Appellant had lured 
5

him into Appellant’s study and that Appellant had seduced him into allowing 

Appellant to perform fellatio on him and sought to have the complainant perform 

fellatio on Appellant. The complainant eventually told the youth minister, who was 

never interviewed by law enforcement and did not testify at trial, what had 

happened. The youth minister went to the complainant’s parents to tell them what 

their son had told him. The parents, in turn, reported what they had been told to the 

Burkburnett Police Department. The purported offenses were alleged to have 

occurred in April 2007.

At trial, Appellant sought to elicit testimony that the complainant had been 

adjudicated delinquent for sexually molesting his ten-year-old sister and, among 

other things, was in court-ordered counseling as a result. On appeal, Appellant 

argues that the excluded evidence (1) was admissible to rebut the false impression 

the State had left with the jury regarding the primary reason the complainant was in 

counseling, thereby opening the door for the sexual abuse evidence; (2) impeached 

the complainant’s testimony that his guilt in being the victim of sexual abuse was 

relieved when he made his outcry; and (3) supported the defense’s theory that the 

complainant had fabricated the abuse allegations against Appellant to get attention 

and sympathy for himself. In the trial court, Appellant offered the evidence on the 

basis that under the Sixth Amendment, cross-examination is the fundamental right 

of a defendant, affecting due process. He argued that the evidence showed the 

complainant’s mental state at the time he made the outcry and what he was in 

counseling for. He also argued that the complainant’s past sexual behavior could be 
6

motive or bias for making the outcry, not only for deception, but to get attention, and 

that the evidence was admissible to show the complainant’s knowledge of sexual 

matters.

Double Jeopardy

In his third issue, Appellant argues that because the crime of indecency with a 

child by contact, as alleged in Count Three of the indictment, was subsumed in the 

crime of aggravated sexual assault of a child as alleged in Count One of the 

indictment, the evidence is insufficient to show that Appellant committed a separate 

indecency offense as alleged in the indictment. He further argues that having two 

convictions rely on the same act of touching violates double jeopardy protections. 

The record clearly shows that the sexual contact proved at trial occurred during and 

as part of the aggravated sexual assault alleged in Count One. As the State 

candidly concedes, to allow both convictions to stand would violate the double 

jeopardy clause of the Constitution of the United States.2 Because the contact 

alleged in Count Three was subsumed in the aggravated sexual assault of a child 

alleged in Count One, we sustain Appellant’s third issue. We reverse the trial 

court’s judgment as to Count Three, set aside Appellant’s conviction and 

 

2See U.S. Const. amend. V; Brown v. Ohio, 432 U.S. 161, 165, 97 S. Ct. 

2221, 2225 (1977); Ex parte Herron, 790 S.W.2d 623, 624 (Tex. Crim. App. 1990) 

(op. on reh’g).
7

punishment for indecency with a child by contact as alleged in Count Three,

3

and 

enter a judgment of acquittal on Count Three.4

Evidentiary Issues

The Complainant’s Prior Bad Acts

In his first issue, Appellant contends that the trial court erred by excluding 

evidence in violation of the Sixth Amendment, the Due Process Clause, and rules of 

evidence 404(B) and 412 that the complainant had sexually assaulted his younger 

sister. Appellant argues that “[t]he evidence that the alleged victim had sexually 

molested his little sister was admissible because the State left a false impression 

with the jury during its direct exam of the alleged victim and because it was 

admissible to show his mental status at the time of his alleged outcry.”

The State concedes that Appellant preserved his constitutional complaint but 

argues that he failed to preserve that portion of his complaint concerning the State’s 

creating a false impression. After reviewing the record, we disagree. In offering the 

evidence, defense counsel argued,

 

3See Bigon v. State, 252 S.W.3d 360, 373 (Tex. Crim. App. 2008) (retaining 

first-degree felony as “most serious offense” over second-degree felony with 

identical sentence); Ex parte Pruitt, 233 S.W.3d 338, 348 (Tex. Crim. App. 2007) 

(holding genital contact subsumed within alleged incident of penetration is lesser 

included offense of penetration); Patterson v. State, 152 S.W.3d 88, 92 (Tex. Crim. 

App. 2004) (holding penile contact with genitals in course of penile penetration 

subsumed).

4See Bigon, 252 S.W.3d at 373.
8

And the Merch case and others have said that the—the person’s 

mental state at the time that, you know, he—he makes this outcry, I 

think is relevant and what’s going on in his head. And he said that it 

affected his mental state. That’s what he was in counseling for and so I 

think it goes in for that.

Indeed, Appellant’s entire defense was an attempt to show that the State was 

creating the false impression that the complainant was a victim, a child who was 

emotionally distraught over being victimized and sufficiently innocent to be 

embarrassed to discuss it. The State wanted to create the impression with the jury 

that the complainant was truthful; Appellant wanted to show the jury that the 

complainant was a liar. Appellant’s position throughout the trial, which he has 

maintained on appeal, was that the State created the false impression that the 

complainant was innocent in sexual matters. That was an impression that Appellant 

sought to dispel at trial and now seeks to dispel on appeal. We therefore hold that 

Appellant sufficiently preserved this entire issue for appellate review.

Outside the presence of the jury, the complainant testified that he had 

sexually abused his younger sister both before and after Appellant’s sexual assaults

on him. The complainant also testified that his parents put him in counseling 

because he was sexually abusing his sister. There was evidence that the 

counseling was court-ordered as a result of the complainant’s sexual abuse of his 

younger sister over several years. Sexual abuse of his sister was one of the things 

that the complainant was struggling with in November 2007 and contributed to his 

emotional difficulties. Before the jury, however, the complainant’s father testified 

that the complainant was being bullied at school, suffering from depression, had a 
9

stressful relationship with his parents, and had been caught shoplifting. Watching 

pornography was also an issue. The complainant’s father testified that those were 

the reasons that he and his wife had placed the complainant in counseling, 

although, when asked if the complainant was in counseling before April 2007, his 

father testified that he could not remember when counseling began. The following 

exchange occurred before the jury:

Q. Okay. And so he—you would agree with me that during the fall 

of 2007, including November of ‘07—November of 2007, he was 

dealing with a lot of issues, correct?

A. There were issues, yes.

Q. And he was having emotional difficulties, correct?

A. Yes.

Outside the presence of the jury, the complainant testified to the sexual abuse 

of his sister. In the jury’s presence, he testified that Appellant had sexually abused 

him. He also testified about his use of pornography and stealing. He said that he 

had watched pornography for a long time. According to his father, the complainant 

had viewed pornography at least since he was ten years old. But the complainant 

also testified that he had gone four months without watching pornography until 

Appellant influenced him to start watching pornography again. The complainant 

also testified that he was angry at Appellant because Appellant had let him play with 

a Nintendo DS that had been donated to the church but then took the DS away from 

him. Then the complainant testified,
10

Q. At some point you made the decision to tell someone about the 

sexual acts [by Appellant against the complainant]?

A. Yes.

Q. Why did you decide to do that?

A. Because after the DS wasn’t allowed to come to the teen group, 

I was at first pretty angry that I didn’t get the DS like I wanted, 

but then I got to thinking about it and then I thanked Jimmy for 

not letting us have it. That was the teen leader that didn’t allow it 

to come through. And I told him that I was thankful for it[,] and 

he said that—why are you glad that that didn’t happen? I said, 

well, let’s just say I can’t tell you. And he said, well, that sounds 

a lot like something that happened to me.

Q. And then—and then did you tell him what happened to you?

A. Yes.

Q. Did you tell him everything?

A. Yes.

Q. How did you feel when you told him?

A. I felt better, like a weight off my shoulders . . . .

The State argues that the rules of evidence and the family code prevented 

impeachment by a juvenile adjudication and that the evidence was not relevant to 

Appellant’s theory of fabrication. We disagree. The Texas Court of Criminal 

Appeals has set out a hierarchy for situations in which there is a conflict between the 

caselaw and its rules. Rule of Evidence 101(c) states that in criminal cases,

[h]ierarchical governance shall be in the following order: the 

Constitution of the United States, those federal statutes that control 

states under the supremacy clause, the Constitution of Texas, the 

Code of Criminal Procedure and the Penal Code, civil statutes, these 
11

rules, and the common law. Where possible, inconsistency is to be 

removed by reasonable construction.5

The Texas Court of Criminal Appeals addressed the appropriate balancing of 

interests between rule 403 and a defendant’s right to confront and cross-examine 

his accuser and to present his defense in a sexual assault case in Hammer v. State:

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.6

The Hammer court concluded that “the constitution is offended if the state 

evidentiary rule would prohibit him from cross-examining a witness concerning 

possible motives, bias, and prejudice to such an extent that he could not present a 

vital defensive theory.”

7

In presenting its case and in jury argument in the trial court, the State 

repeatedly referred to the reluctance of a boy the complainant’s age to admit to the 

 

5

Tex. R. Evid. 101(c).

6

296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009) (footnotes omitted).

7

Id. at 562–63.
12

sexual acts that he claimed Appellant committed against him, essentially natural 

shyness to speak of sexual matters. Further, the State repeatedly spoke of the 

grooming that would cause an innocent young man to become the victim of a sexual 

predator. Finally, the prosecutor began the State’s rebuttal final argument by 

reminding the jury that he had told them during opening statement that “this case is 

about a deviant man who took sexual advantage of a young boy . . . [,] how 

[Appellant] took sexual advantage of [the complainant] for [Appellant’s] own 

pleasure and . . . manipulated [the complainant,] . . . and these are the aftereffects 

that you’ve heard about this week.” Final argument continued in this vein until the 

very end.

The State left the impression with the jury that the complainant’s emotional 

problems, watching pornography, conflict with his parents, and need for counseling 

all arose as a result of his victimization by school bullies and by Appellant, who 

caused him to participate in sexual activities. This was a false impression that 

Appellant was entitled to rebut8as part of his fundamental due process right to 

confront and cross-examine witnesses against him in challenging the State’s case.9

 

8See Renteria v. State, 206 S.W.3d 689, 697–98 (Tex. Crim. App. 2006) 

(holding that exclusion of evidence showing the defendant’s remorse violated due 

process by preventing defendant from rebutting the State’s case when the State left 

jury with false impression and emphasized it).

9See Holmes v. South Carolina, 547 U.S. 319, 324, 126 S. Ct. 1727, 1731 

(2006) (“Whether rooted directly in the Due Process Clause of the Fourteenth 

Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth 

Amendment, the Constitution guarantees criminal defendants a meaningful 
13

The United States Supreme Court said in Pointer v. Texas,

There are few subjects, perhaps, upon which this Court and other 

courts have been more nearly unanimous than in their expressions of 

belief that the right of confrontation and cross-examination is an 

essential and fundamental requirement for the kind of fair trial which is 

this country’s constitutional goal. Indeed, we have expressly declared 

that to deprive an accused of the right to cross-examine the witnesses 

against him is a denial of the Fourteenth Amendment’s guarantee of 

due process of law.10

Appellant was entitled to present his defense. As a fundamental right, the 

Constitution guarantees criminal defendants a meaningful opportunity to present a 

complete defense. The complainant had already been adjudicated delinquent for 

sexually assaulting his younger sister. He was not particularly remorseful for that 

conduct, and his actions resulted in strained relations with his parents and the need 

for counseling. He was mad at Appellant, and, having been adjudicated delinquent 

for sexually assaulting his younger sister, he knew firsthand or should have known 

how damning and indefensible an accusation of sexual assault could be. Appellant 

was entitled to correct the misleading characterization of the complainant that the 

 

opportunity to present a complete defense.” (quoting Crane v. Kentucky, 476 U.S. 

683, 690, 106 S. Ct. 2142, 2146 (1986)) (internal quotations and citations omitted)); 

see also California v. Trombetta, 467 U.S. 479, 486 n.6, 104 S. Ct. 2528, 2532 n.6 

(1984) (“In related cases arising under the Sixth and Fourteenth Amendments, we 

have recognized that criminal defendants are entitled to call witnesses on their own 

behalf and to cross-examine witnesses who have testified on the government’s 

behalf.” (citations omitted)); Holmes v. State, 323 S.W.3d 163, 173 (Tex. Crim. App. 

2009) (op. on reh’g) (“[T]he trial court’s ruling disallowing cross-examination of the 

State’s expert witness violated the defendant’s fundamental rights to a fair trial.”).

10380 U.S. 400, 405, 85 S. Ct. 1065, 1068 (1965).
14

State had presented to the jury, but the trial court impermissibly limited his right to 

cross-examine both the complainant and other witnesses against Appellant and to 

present evidence. We therefore hold that the trial court abused its discretion by not 

allowing Appellant to cross-examine the complainant and other adverse witnesses

with evidence of the complainant’s prior sexual victimization of his little sister.

Rule 44.2(a) of the Rules of Appellate Procedure provides that “[i]f the 

appellate record in a criminal case reveals constitutional error that is subject to 

harmless error review, the court of appeals must reverse a judgment of conviction or 

punishment unless the court determines beyond a reasonable doubt that the error 

did not contribute to the conviction or punishment.”

11

 Appellant was not allowed to 

present his defense to the jury in any sense other than argument and innuendo. He 

was not allowed to offer substantive evidence to rebut the picture of the complainant 

painted by the State and to explain the bases of Appellant’s assertion that the 

complainant was not the shy innocent who was devastated by sexual abuse 

requiring counseling to repair the emotional damage. No scientific evidence, no 

witness, no physical evidence, and no admission otherwise supported the 

complainant’s allegations. It was simply a swearing match. We therefore cannot 

say beyond a reasonable doubt that the error did not contribute to Appellant’s 

convictions or punishment on the two remaining counts.

 

11Tex. R. App. P. 44.2(a).
15

In summary, the State’s questioning of the complainant and his father painted 

an incomplete and misleading picture of the complainant and the circumstances of 

his outcry. By developing the testimony as it did, the State opened the door to 

evidence that could have accurately conveyed why the complainant was in 

counseling, what motivation he may have had to make up a false accusation, and 

the degree to which he understood sexual matters and to which he personally 

appreciated legal consequences imposed upon sex offenders.

It should be clear, however, that this opinion is not a green light for Appellant 

in any subsequent retrial, or for other litigants in other similar cases, to explore in 

detail the sexual exploits of the complainant or those in positions similar to that in 

which the complainant finds himself in this case. It is the fact that, and the manner 

in which, the State created a false impression that opened the door to evidence that 

the complainant had sexual issues before he met Appellant. We stress that our 

holding is confined to the record presented in this appeal. The details of the 

complainant’s abuse of his sister, in terms of its nature, frequency, and duration, 

may not be necessary to rebut the false impression that the complainant did not 

have issues of a sexual nature before his alleged sexual encounter with Appellant. 

With these reservations clearly understood, we sustain Appellant’s first issue, and 

because of our disposition of this issue, we do not reach his second issue.12

 

12See Tex. R. App. P. 47.1.
16

Conclusion

Having sustained Appellant’s third issue, we reverse the trial court’s judgment 

as to the indecency with a child by contact conviction and sentence, set aside that 

conviction and sentence, and enter a judgment of acquittal as to Count Three of the 

indictment. Having sustained Appellant’s first issue, we reverse the trial court’s 

judgment as to the two aggravated sexual assaults alleged in Counts One and Two 

of the indictment and remand this case to the trial court for a new trial on those 

counts only.

LEE ANN DAUPHINOT 

JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: February 14, 2013