Opinion
No. 12-06-00190-CR
Opinion delivered August 8, 2007. DO NOT PUBLISH.
Appeal from the 7th Judicial District Court of Smith County, Texas.
Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
MEMORANDUM OPINION ON REHEARING
Appellant Carla Dinger filed a motion for rehearing, which is overruled. The court's opinion of June 20, 2007 is hereby withdrawn, and the following opinion is substituted in its place. Appellant Carla Dinger was convicted of sexual assault of a child and sentenced to twenty years of imprisonment with a fine of $10,000.00. In two issues, Appellant alleges that the trial court improperly limited her cross examination of two witnesses and that the trial court erroneously allowed the prosecution to present evidence of extraneous bad acts without first giving adequate notice. We affirm.
BACKGROUND
On December 9, 2004, Appellant was charged by indictment with sexual assault of a child. The victim was her stepson, J.D. The offense charged related to one of many sexual encounters Appellant had with J.D., who was a teenager at the time of the encounters. As a result of her sexual encounters with J.D., Appellant became pregnant and bore a child, T.D, who was approximately five years old at the time of Appellant's indictment. During their relationship, Appellant had also introduced J.D. to illegal drugs, regularly providing him with methamphetamine and showing him how to use it. Appellant pleaded guilty to the offense on April 25, 2006 and elected to have her punishment assessed by a jury. That jury sentenced her to twenty years of imprisonment and fined her $10,000.00. This appeal followed.LIMITS ON CROSS EXAMINATION
In her first issue, Appellant argues that the trial court improperly limited her cross examination of J.D. and his biological mother. Specifically, she contends that she should have been allowed to cross examine J.D. and his mother about J.D.'s alleged behavioral problems before his sexual relationship with Appellant and about J.D.'s mother's plans to send J.D. to live with Appellant. Appellant argues further that by these limitations, the trial court denied her the opportunity to rebut the false impression created by these witnesses that J.D.'s mental health and drug abuse problems stemmed solely from his sexual relationship with Appellant and to rebut the false impression that Appellant "lured" J.D. away from his biological mother and into her own household. Appellant contends this testimony was relevant to punishment as mitigating evidence. Appellant also argues that her federal constitutional right to confront the witnesses against her was violated when the trial court limited her cross examination of these witnesses.Standard of Review
Generally, we review a trial court's decision to exclude evidence under an abuse of discretion standard. See Burden v. State , 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). A trial court does not abuse its discretion when its decision is within the zone of reasonable disagreement. Montgomery v. State , 810 S.W.2d 372, 391 (Tex.Crim.App. 1991) (op. on reh'g). Absent an abuse of discretion, we will not reverse a trial court's decision to exclude evidence. See Burden , 55 S.W.3d at 615. Under an abuse of discretion review, we will uphold the trial court's ruling on the admission or exclusion of evidence if the ruling was proper under any legal theory or basis applicable to the case. See Martinez v. State , 91 S.W.3d 331, 336 (Tex.Crim.App. 2002). The trial court prohibited these areas of cross examination on two grounds. First, the trial court ruled that the evidence in question was not relevant to punishment under article 37.07 of the Texas Code of Criminal Procedure. Second, the trial court ruled that the evidence in question should be excluded pursuant to Rule 403 of the Texas Rules of Evidence. Appellant challenges the trial court's ruling that the evidence was not relevant to punishment under article 37.07. However, even if the evidence was relevant to punishment under article 37.07, evidence that runs afoul of Rule 403 may (and should) still be excluded. See Boone v. State , 60 S.W.3d 231, 239-40 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). Appellant has not challenged the trial court's Rule 403 ruling as improper under Rule 403 itself. Because the unchallenged Rule 403 ground supports the trial court's overall ruling, we do not address whether the evidence was, in fact, relevant to punishment under article 37.07. The only remaining question is whether the Sixth Amendment to the United States Constitution trumps the trial court's Rule 403 ruling.Discussion
The Sixth Amendment provides in pertinent part that "the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. CONST. amend. VI. The right to confront opposing witnesses necessarily includes the right to cross examine. Davis v. Alaska , 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110, 39 L. Ed. 2d 347 (1974). Cross examination serves three general purposes: (1) cross examination may serve to identify the witness with his community so that independent testimony may be sought and offered concerning the reputation of the witness for veracity within that community; (2) cross examination allows the jury to assess the credibility of the witness; and (3) cross examination allows facts to be brought out tending to discredit the witness by showing that his testimony in chief was untrue or biased. See Alford v. United States , 282 U.S. 687, 691-92, 51 S. Ct. 218, 219, 75 L. Ed. 624 (1931). The right of confrontation is violated when appropriate cross examination is limited. Carroll v. State , 916 S.W.2d 494, 497 (Tex.Crim.App. 1996) (plurality opinion) (citing Hurd v. State , 725 S.W.2d 249, 252 (Tex.Crim.App. 1987)). The scope of appropriate cross examination is necessarily broad. Id. A defendant is entitled to pursue all avenues of cross examination reasonably calculated to expose a motive, bias, or interest for the witness to testify. Lewis v. State , 815 S.W.2d 560, 565 (Tex.Crim.App. 1991). It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial court from imposing any limits on defense counsel's inquiry. Delaware v. Van Arsdall , 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986). On the contrary, trial courts retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross examination. Id. While the breadth of a trial court's ability to limit cross examination has not been fully explored by our courts, it is clear that a trial court may limit cross examination when a subject is exhausted, or when the cross examination is designed to annoy, harass, or humiliate, or when the cross examination might endanger the personal safety of the witness. See Carroll , 916 S.W.2d at 498. Likewise, a trial court may limit cross examination to prevent unfair prejudice, confusion of the issues, or repetitive or marginally relevant interrogation. See id. (citing Van Arsdall , 475 U.S. at 679, 106 S. Ct. at 1435). "[T]he Confrontation Clause will prevail if there is a conflict between it and the Rules of Evidence." Lopez v. State , 18 S.W.3d 220, 222 (Tex.Crim.App. 2000). Rule 403 prohibits cross examination where "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." See TEX. R. EVID. 403. It is clear from the language of the rule that Rule 403 falls within the exceptions to the right of confrontation that have been already delineated by our courts. See Van Arsdall , 475 U.S. at 679, 106 S. Ct. at 1435; Carroll , 916 S.W.2d at 498. It is, therefore, equally clear that Rule 403 does not directly conflict with the Confrontation Clause. See Nevels v. State , 954 S.W.2d 154, 157 (Tex.App.-Waco 1997, pet. ref'd). Consequently, we are left with two questions. First, we must ascertain "whether the Confrontation Clause requires us to carve out a special exception to the Rules of Evidence for sexual offenses." See Lopez , 18 S.W.3d at 223. Second, even if no general exception is required, we must consider whether the Confrontation Clause trumps Rule 403 "under the facts of this case." See id. at 225. Regarding our first question, the Texas Court of Criminal Appeals has previously been presented with a similar question in the context of a trial court's limiting of cross examination based on Rule 608(b) of the Rules of Evidence. See id. at 223. After carefully considering the special nature of sexual offense cases and the wisdom behind Rule 608(b), the court stated as follows:It makes no sense to say that certain factors will always be present in a case involving a sexual offense but will never be present in a case involving a different type of offense. . . . We see no reason to create a special exception to Rule 608(b) today. A more logical approach is to look at each individual case to determine whether the Confrontation Clause demands the admissibility of certain evidence.Id. at 225. This logic seems equally applicable to Rule 403. Further, Rule 403 has been interpreted, in the context of a sexual offense case, as being in harmony with the Confrontation Clause. See Nevels , 954 S.W.2d at 157. Therefore, we decline to recognize a general exception to Rule 403 for sexual offense cases. Cf. Lopez , 18 S.W.3d at 225. We now turn to the question of the application of the Confrontation Clause to "the facts of this case." See id. "In weighing whether evidence must be admitted under the Confrontation Clause, the trial court should balance the probative value of the evidence sought to be introduced against the risk its admission may entail." Id. at 222. As stated above, Rule 403 prohibits cross examination where "its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence." See TEX. R. EVID. 403. Therefore, by making a ruling based on Rule 403, the trial court balanced the pertinent factors in a manner consistent with that required by the Confrontation Clause. See Nevels , 954 S.W.2d at 157. Because that ruling has not been challenged on appeal, we need not review the trial court's analysis. The trial court found that the probative value of the testimony in question was substantially outweighed by Rule 403 concerns. Because Rule 403 falls within the exceptions to the right of confrontation that have been delineated by our courts, and because Rule 403 only allows for the exclusion of testimony where its probative value is substantially outweighed by concerns found within these exceptions, no additional weighing by this court is necessary. Testimony properly excluded under Rule 403 is also properly excluded under the Confrontation Clause. See Nevels , 954 S.W.2d at 157 ("The trial court found that the probative value of A.A.'s testimony regarding her employment as a stripper was substantially outweighed by its prejudicial effect. Consequently, because the trial court may limit the cross — examination of a witness for such reason without violating a criminal defendant's constitutional right to confrontation of witnesses, we conclude that the trial court did not err in limiting Nevels' cross — examination of A.A.") (citing Van Arsdall , 475 U.S. at 679, 106 S. Ct. at 1435; Carroll , 916 S.W.2d at 498). Therefore, because Appellant has not directly attacked the trial court's Rule 403 ruling, we hold that the trial court did not err in limiting Appellant's cross examination. We overrule Appellant's first issue.