Opinion
03-20-00100-CR
02-03-2022
Tempest LaFon Coulter, Appellant v. The State of Texas, Appellee
Do Not Publish
FROM THE 368TH DISTRICT COURT OF WILLIAMSON COUNTY NO. 17-1331-K26, THE HONORABLE RICK J. KENNON, JUDGE PRESIDING
Before Chief Justice Byrne, Justices Baker and Kelly
MEMORANDUM OPINION
CHARI L. KELLY, JUSTICE
A jury convicted Tempest LaFon Coulter of the first-degree felony of knowingly causing serious bodily injury to a child. See Tex. Penal Code § 22.04(a)(1), (e). The jury assessed Coulter's punishment at fourteen years in prison, and the trial court entered judgment accordingly. In eight appellate issues, Coulter contends that the trial court abused its discretion by excluding evidence about a purported alternative perpetrator, the victim's father; that excluding that evidence violated her constitutional rights; and that admitting other evidence was an abuse of discretion. We affirm.
BACKGROUND
The victim is Kelly and Chasten Richter's youngest son and was about ten months old in June 2017 and had been going to Coulter's home daycare regularly at the time of the incident. Kelly, Chasten, and their three children lived with Kelly's mother, Alifonsa Martinez. Prior to June 2017, the victim was a normal, healthy, and happy baby, starting to pull himself up onto things and learning to stand, walk, feed himself, and hold a bottle. He was not developing any more slowly than his brothers had. He had no history of serious medical issues, and Chasten would help Kelly take him to routine doctor visits. Because the Richters and Martinez worked during the day, either Martinez or Kelly would take the victim and his two-and-a-half-year-old brother to Coulter's home daycare.
We will refer to each Richter by their first name for ease of reference.
The two Richter children had been going to Coulter's home for several months, and while both at first seemed happy about it, the middle son grew increasingly sad in the couple of months leading to June 2017. He had started crying and dropping his head when on the way to Coulter's home, in a way that concerned Martinez. And he was often fussy and upset when being picked up from there. About the same time, the Richters and Martinez started noticing injuries on the middle son. On about four occasions, "he would have bumps" on "the very back, the back parts" of his head. It would look like his hair had been combed over to cover the bumps. One such injury involved a set of bruises close together-one on his ear lobe and the other behind his ear. Kelly would text-message Coulter to ask her about the injuries, including sending photos, and Coulter would respond that she was shocked to see the injuries and never saw what caused them and would deny their being inflicted at her home, adding that her own two children were not around at the time. The Richters and Martinez became so concerned about the injuries, which continued into June 2017, that they suspected Coulter of having caused them and, by the end of May 2017, were considering alternative daycare arrangements. Still, Kelly believed Coulter's explanations for the injuries because Kelly "didn't think [Coulter] could hurt [Kelly's] kids," thinking instead that the injuries were from child-on-child horseplay.
June 15, 2017, began as most weekdays did for the Martinez-Richter household, with the Richters feeding and dressing their children and getting ready for work. The victim had woken up in the middle of the night, which was not unusual, so Kelly gave him a bottle, which he drank, and she went back to sleep. According to Kelly's testimony at trial, he "seemed fine." Later, Kelly woke up for the day before Chasten did, and the victim was then sitting up, cooing, and babbling happily. She took a shower.
The children were then dressed and brought to the kitchen to have breakfast, where the victim ate in his highchair. Everyone then got into their cars to leave for work or to drop off the children at daycare. This is when Martinez first saw the victim that morning, and he seemed to her "good" and happy and to be eating as normal. Chasten was the last person to hold the victim at their home that morning, when he put him into his car seat in Martinez's car. The victim was, according to Chasten, "[f]ine," "[h]appy," "[n]ormal," "aware of his surroundings," "ready to go," "not fussy," and "not crying." Before Martinez drove the younger two children to Coulter's home that morning, she did not see "in the morning at any time Kelly or Chasten do anything to" the victim. And when she arrived at Coulter's home around 7:25 a.m., she carried the victim to the front door, everything seemed normal with him, she set him down just inside the home, and he started crawling away normally and without difficulty.
Several hours later, around lunchtime, a paramedic called Kelly to tell her that the victim was seriously hurt. Coulter had not texted Kelly, which is how they would usually communicate, so Kelly called Coulter to ask what happened. Coulter was crying and sounded scared. She told Kelly, "I don't know; [h]e was in the bouncer; [h]is hands were up; [h]e was acting funny." She never gave Kelly any other explanation. She had called 911 around 12:54 p.m.
One paramedic who had arrived to treat the victim found him "lying on the floor and quiet." He was breathing and had a pulse but was not responding and had likely had a seizure because his arms and legs "were tremoring." He had never had a seizure before. The paramedic then saw the victim start "posturing," meaning that he grew "real stiff and [his] hands [went] back behind" his body and his legs went "outward." This suggested to the paramedics a traumatic head injury. Coulter, though "in obvious emotional distress," told the paramedics that he was in a "bouncy seat when she thought he was asleep" and "was going to lay him down" but "found him unresponsive, not breathing," despite his having "act[ed] normal before [she put] him [in] the bouncy seat." She also told them that everything had been normal with him for the preceding several days and denied that he had any "recent falls/hitting head."
Chasten and Martinez arrived separately to Coulter's home and asked what had happened. Her response was that "she didn't know, that he was acting funny and not breathing right." Martinez arrived early enough to see the victim lying on the ground and not breathing but did not see any injuries on him. Martinez and Chasten soon left to go to the hospital where an ambulance had taken the victim, leaving the Richters' middle son behind at Coulter's home.
The victim was treated in two hospitals, by several physicians, including an emergency-medicine physician, a pediatric hospitalist who was a member of her hospital's Child Abuse Resource and Education (CARE) Team, and a child neurologist. He spent a long stay in the second hospital, at first clinging to life there. In all, he had, according to the hospitalist, "very, very serious[] injur[ies]," which left it unclear whether "he would recover at all or that he would survive." His injuries were a subdural hematoma, or "bleeding outside the brain"; "swelling within the entire left lobe of the brain" that pushed the left lobe beyond the midline and made it encroach on the right; "a little bit of abnormality on the right brain hemisphere"; death of important brain tissue; "blood down in the cervical spine"; "bleeding in the back of [both] eyes," "worse on the left than the right"; a weeks-old "fracture of the left posterior seventh rib"; a stroke; seizure; and a loss of "normal brain architecture" in one hemisphere indicating a very serious injury. The emergency-medicine physician did not notice any external injuries on him, such as bruising or fractures. In all, his injuries could have been consistent with "the brain rapidly accelerating and decelerating within the head."
The three physicians agreed that the kinds of injuries he exhibited would have shown noticeable symptoms immediately. The emergency-medicine physician would not have expected him to be "behav[ing] normally with those injuries": the midline shift in the brain suggested that he would have "ha[d] symptoms that onset quicker" than not. The child neurologist generally agreed, noting that he would have "be[en] symptomatic immediately with [his] type of injury"-unable to eat, move, or interact normally. Whatever damaged his brain, the child neurologist testified, "was an acute event" and not a culmination of multiple events. The hospitalist observed the bleeding on the brain to be only "hours old" and suggestive of a hard slap, or punch, strong enough to injure the brain globally, instead of just locally at an impact site. Specifically about the bleeding in his eyes, the hospitalist believed the victim's injuries suggestive of "a severe acceleration-and-deceleration injury, so shaken or thrown and stopped by something, that those forces cause a jostling and a shearing that tears the blood vessels kind of on the surface." To her, his injuries as a whole "would have shown immediate symptoms," like "vomiting, letharg[y], and then possibly seizures." She said that "[t]here is no lucid interval or lag in" injuries like his-the symptoms "are immediate." To her, this meant that his injuries were "completely inconsistent" with an explanation that he was normal, feeding, playful, and sitting in a bouncy seat just before the injury. She therefore believed that if the Richters last saw the victim around 7:30 a.m. on the day of the incident, they could not have inflicted the injury that led to the 911 call just before 1:00 p.m. because his injuries were "severe enough that . . . he was immediately symptomatic and probably couldn't have survived more than an hour, maybe an hour and a half." Thus, the hospitalist testified, the earliest that day that the victim would have sustained his injury would have been around 11:30 a.m.
Coulter cooperated with police detectives' investigation, but they concluded, after consulting with the hospital CARE Team, that the injuries were no accident and ruled out Martinez and the Richters "[b]ased on the timeline that was given" by healthcare professionals. The State then indicted Coulter for knowingly causing serious bodily injury to the victim "by causing the rapid acceleration and deceleration of" his body. The State tried Coulter before a jury, and its case consisted of exhibits and testimony by Martinez, one of the paramedics, the emergency-medicine physician, Chasten, a police detective, the hospitalist, the child neurologist, and Kelly.
Before trial, the State filed a motion in limine seeking a preliminary ruling to exclude under Rules of Evidence 404 and 609 extrinsic evidence of Chasten's prior assault arrests, arguing that the circumstances surrounding the prior bad acts were not admissible but conceding that any resulting convictions were admissible. Coulter responded with her intent to put forth "an alternate perpetrator theory," which would include the circumstances surrounding Chasten's past offenses for assault family violence against his wife and mother-in-law and an allegation that his wife told the police during one of the associated arrests that "he was violent towards children." The court made a preliminary ruling that while the convictions were admissible, the circumstances surrounding them were not, as they were not for child assault or did not involve allegations of shaking children. The court also ruled that Coulter could question law enforcement about whether they considered alternative suspects.
At trial the prosecutor previewed Chasten's past convictions during opening statement. And Chasten, during his direct-examination testimony, admitted that he had convictions for burglaries and forgery of a financial instrument and a misdemeanor conviction for assault family violence and was then on probation for a felony assault family violence. The felony assault family violence, he testified, stemmed from an incident in September 2016, nine months before the events in question.
During a break in trial, Coulter asked the court to revisit its earlier motion in limine ruling about Chasten's prior bad acts. Coulter argued that the evidence was needed for her alternative-perpetrator theory and to rebut an implication that she has committed "other extraneous acts against" the Richters' middle son. The State objected to any such evidence, under both Rules of Evidence 403 and 404.
Outside the presence of the jury, Coulter offered a document showing that while investigating the September 2016 assault family violence offense against Kelly, officers checked a box on a "Domestic Violence Risk Assessment" form to indicate that Chasten had been "violent toward children." Additionally, Coulter proffered that Kelly had once text-messaged a friend to say that Chasten told her that she was raising their oldest son to be "a pussy" because the son cries, including after Chasten had pulled the son's hair. At the hearing Kelly testified that she did not remember officers ever asking her after the 2016 assault if Chasten had hurt the children. She testified that Chasten had never hurt the children but that he had once pushed the oldest son, "almost like just pushing him out of the way" and was "disciplining him in an incorrect way."
Coulter also proffered evidence of the circumstances of Chasten's assaults on several adults. She offered a 2014 statement from Kelly connected to a 2014 assault, in which Kelly stated that Chasten "blew up on" her, pushed her off a chair and into their refrigerator, "[b]roke the oven glass door," "tried to choke" her with both hands, and broke her phone when she tried to call Martinez.
Then in December 2014, according to Coulter's proffer, Chasten assaulted Martinez when she intervened while he was again assaulting Kelly, who was then eight months pregnant. He grabbed Martinez's phone and pushed her down some stairs. She went to a neighbor's house for help, and the neighbor walked over to see what was happening. Chasten pushed and punched the neighbor.
In the September 2016 incident of Chasten's felony assault family violence, Chasten again assaulted Kelly. He threw things, pushed her onto a bed, and slapped her face several times. Kelly described the assault to a friend, relating that Chasten was going crazy and that she was afraid that he would hurt her or her parents. She also said that he slapped her; pushed her into furniture again; choked her; and told her, "I'll kill you." When police arrived, Chasten knocked one officer off the porch of the home with a screen door, threatened to punch officers if they tried to touch him, and tried to strike an officer. Coulter again sought admission of all this evidence and the chance to question certain witnesses about its substance, but the trial court excluded the evidence.
When Coulter's case-in-chief resumed before the jury, a forensic pathologist testified, and so did Coulter herself. Coulter testified that while she was the only adult at her home watching the two Richter children and another child that day, she dropped the victim. He fell on his bottom on carpet and "rocked backwards and then came back," during which, she said, "his head went back." She picked him up, consoled him, put him in a bouncy chair, and went by herself to the bathroom. She quickly came back out and saw the victim "just staring at me, not laughing, smiling, like he usually does," and saw "the look in his eyes, which was, like, kind of a shocking look, eyes big, and his arm was, like, bent outwards." She testified that "[h]e wouldn't react to me calling his name"; she "tried to make him laugh, and he didn't laugh"; "[h]e was just looking at me"; and "after that I just started yelling his name, and I shook the bouncer"-but not the victim himself-"to get him to respond, and he just-was just staring at me." She then called 911.
On cross-examination, she admitted that she did not tell either the Richters or police, at first, that she had dropped the victim. She did not tell police because they were instead asking her about shaking him: "Because they said 'shaking,' and I was thinking the whole day what could have happened that was shaking him-that could have shook him. And I couldn't think of anything." Only during a follow-up police interview did she tell police that she had dropped him because, she testified, their questions changed: "Because it changed. They said a fall from 15 feet or something. So then I started thinking of what else happened throughout the day, and that's when I told him that he-I dropped him and he fell." Before this follow-up interview, she had never mentioned the dropping to police because she "didn't think anything significant had happened"-she did not think the drop "would cause this big head injury." When cross-examined about the paramedic's notes, Coulter said that the paramedic must be "making [it] up" when the paramedic noted on a form that "[c]aregiver denies recent falls/hitting head" because, Coulter explained, the paramedic never asked her that question. Nor did she ever volunteer to the paramedics that she had dropped the victim.
The jury convicted Coulter of knowingly injuring the victim, as indicted. Coulter now appeals.
EXCLUSION OF ALTERNATIVE-PERPETRATOR EVIDENCE
Most of Coulter's appellate issues concern why the trial court should have admitted the evidence surrounding Chasten's prior bad acts or allowed cross-examination about it. She argues that it was admissible under the Texas Rules of Evidence or by her rights under the U.S. Constitution.
The right to present a defense includes the right to attempt to establish innocence by showing that someone else committed the crime. See Wiley v. State, 74 S.W.3d 399, 405-06 (Tex. Crim. App. 2002). Alternative-perpetrator evidence may be admitted to establish innocence by showing that someone else committed the crime. Id. at 406. But the defendant still must show that this proffered evidence is sufficient, on its own or in combination with other evidence in the record, to show a "nexus" between the crime charged and the alleged alternative perpetrator. Id.
A defendant can show such a nexus by showing some act that the purported alternative perpetrator committed. See id. at 407 (in appeal of arson conviction: "Appellant did not at trial, nor on appeal, ever make any connection between the mere presence of [purported alternative perpetrator] near the fire and any act he might have committed to set the fire or assist another in setting the fire."). The proffered evidence must help establish a likelihood that the alternative perpetrator committed the charged offense. See id. at 406-07; see also Davis v. State, 413 S.W.3d 816, 834 (Tex. App.-Austin 2013, pet. ref'd) (evidence "tending to link a specific third-party perpetrator to the crime" would be admissible). When the Wiley alternative-arsonist evidence showed a person's "mere presence . . . near the fire" but no "act he might have committed to set the fire or assist another in setting" it, the evidence failed to show the required nexus. See 74 S.W.3d at 406-07. But the required nexus lies somewhere short of proving that the alternative perpetrator committed the charged offense. See Davis, 413 S.W.3d at 833.
Evidence of third-party guilt is inadmissible if it is merely speculative about whether the purported alternative perpetrator committed the offense. See Wiley, 74 S.W.3d at 406- 08. Speculative blaming intensifies the grave risk of jury confusion and invites the jury to make findings based on emotion or prejudice, in which case the evidence is properly excluded under Rule 403. See id. Similarly, under Rule 404(b), without the required nexus, the evidence amounts only to improper character-conformity evidence. See Tex. R. Evid. 404(b)(1).
I. Admission under the evidentiary rules
A. The evidence was not admissible under the Rules of Evidence.
We review a trial court's admission or exclusion of evidence under the Rules of Evidence for an abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court does not abuse its discretion when its decision is within "the zone of reasonable disagreement." Id.
The trial court here may well have determined that Coulter's proffered evidence of Chasten's prior bad acts was inadmissible under either Rule 403 or Rule 404(b)(1). Even if the evidence was relevant to show that Chasten abused the victim, the evidence cannot be used to infer that he did so in this particular instance. Further, although in part of her first issue Coulter argues that "[t]he Wiley 'nexus' requirement was met in this case," we disagree. Her efforts at trial sought to establish that Chasten must have injured the victim before Martinez took him to Coulter's home on the day in question. She argued that the injury created a "slow bleed" on the brain that did not immediately show symptoms. After Chasten's alleged conduct causing the slow bleed, Coulter suggested, the victim was only fussy or irritable, which Coulter's expert testified could be possible even with his injuries. Then when Coulter accidentally dropped him, the drop exacerbated the Chasten-caused injuries, leading to the victim's clinging to life at the hospital. Evidence for this chain of events was before the jury-witnesses testified that the victim began the day at home with Chasten and the rest of the family, during which time, presumably, Chasten could have injured him, for example, when Chasten was alone with him while Kelly was showering or around when Chasten carried him to Martinez's car. The alternative-perpetrator evidence that the trial court excluded dealt only with Chasten's actions from previous years and not with anything near in time to the day in question.
Even when adding the excluded evidence to what was before the jury, Coulter fell short of "show[ing] a nexus between the" injuries to the victim and Chasten. See Wiley, 74 S.W.3d at 406. Her proffered evidence concerned long-past attacks and assaultive behavior and did not concern the period on or about June 15, 2017. The evidence, both what was before the jury and what Coulter proffered, suggested no act by which Chasten hurt the victim in 2017, suggesting instead at most a mere opportunity for Chasten to have done it. See id. at 406-07; see also Michaelwicz v. State, 186 S.W.3d 601, 618 (Tex. App.-Austin 2006, pet. ref'd) (no nexus showing made when there was "no proof of an act directly connecting [purported alternative perpetrator] with the offense charged" because "mere opportunity is insufficient"); Martinez v. State, 212 S.W.3d 411, 423-24 (Tex. App.-Austin 2006, pet. ref'd) (no nexus showing made when evidence of purported alternative perpetrator's assault showed that it had happened in a different city from where the charged assault took place). We thus reject Coulter's argument under the constitutional right to present a complete defense that the trial court should have admitted the alternative-perpetrator evidence and should not have instructed the jury that it could consider Chasten's convictions only as they bore on his credibility. We overrule this part of her first issue.
In her fifth issue, Coulter contends that the alternative-perpetrator evidence was admissible under Rule 404(b)(2) as one of the permissible uses of prior bad acts-specifically, that Chasten's character was an essential element of her defense, meaning that she could prove his character using specific instances of his conduct under Rule 405(b). Rule 404(b)(2) allows prior bad acts to be admitted for a purpose besides character conformity, like "proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Here, her asserted admissible purpose is as an element of her defense. Rule 405(b) permits admitting "relevant specific instances of [a] person's conduct" when that "person's character or character trait is an essential element of a charge, claim, or defense." She argues that because "Chasten's character for violence was [her] entire defense," the trial court abused its discretion "by excluding the specific instances of [Chasten's] violence in the police reports."
Legally, the "element[s]" of a "defense" to which Rule 405(b) refers are items that must be proven to establish the defense. See, e.g., Tate v. State, 981 S.W.2d 189, 192 n.5 (Tex. Crim. App. 1998) ("[A] victim's character is not an essential element of a claim of self-defense."). For example, because one element of the entrapment defense is that the defendant was not predisposed to commit the offense, defendants asserting entrapment often succeed in offering evidence of specific instances of their good conduct. See id. (explaining United States v. Thomas, 134 F.3d 975 (9th Cir. 1998)). But character-as-an-element is not the norm: "Character per se is almost never an element of a charge or defense in criminal cases." Id. (internal quotation omitted); accord Gilbert v. State, 808 S.W.2d 467, 471 n.5 (Tex. Crim. App. 1991).
To raise an alternative-perpetrator defense, the Court of Criminal Appeals has held that the defendant must show a nexus, discussed above, between the alternative perpetrator and the offense charged. See Wiley, 74 S.W.3d at 406. However, showing the required nexus does not require proving the alternative perpetrator's character or character trait. Coulter also has pointed us to no authority, and we know of none, stating that character or a character trait is an element of an alternative-perpetrator defense. Her alternative-perpetrator defense thus did not involve character as an element, so her alternative-perpetrator evidence was not admissible for that reason under Rules 404(b)(2) and 405(b). See Tate, 981 S.W.2d at 192 n.5 ("Only under certain circumstances can evidence of specific acts be used to demonstrate a person's character, and we agree with the State's argument that these facts do not present the appropriate circumstances. . . . [A] victim's character is not an essential element of a claim of self-defense." (internal citation omitted) (citing Tex. R. Evid. 405(b)); Purtell v. State, 761 S.W.2d 360, 369-70 (Tex. Crim. App. 1988) ("Only in cases where the use of character is essential may character be proven with specific acts. In the instant case, appellant could, and did, make his claim without reference to the deceased's character. We hold that, under Tex.R.Civ.Evid. 405, the trial judge ruled properly that Snyder's testimony was inadmissible. . . . Because [murder victim]'s character is not an essential element of the offense of capital murder nor is it an essential element of a defense to capital murder, the trial judge properly excluded Snyder's testimony concerning specific acts to prove [murder victim]'s character.").
In a separate argument in support of her first appellate issue, Coulter "urges this Court to decline [Wiley]'s invented 'nexus' requirement." We reject this urging-we can't decline to apply binding authority from the Court of Criminal Appeals.
Because Coulter's assertion that her alternative-perpetrator evidence was admissible under these rules is incorrect, we need not reach her arguments that Rules 404(a)(4) and 608(b) did not require the exclusion of her proffered alternative-perpetrator evidence. We overrule her fifth issue.
B. Coulter did not preserve her argument about the State's "opening the door."
In her fourth issue, Coulter contends that the trial court should have admitted her "evidence that [the victim] was likely injured by Chasten . . . because the State opened the door to this evidence." In response, the State argues that Coulter "never argued to the trial court that the State had 'opened the door' to evidence of Chasten Richter's propensity for violence" and, therefore, did not preserve the issue "for appellate review because the issue does not comport with her objection below."
To preserve an appellate complaint about an exclusion of evidence, a party must have (1) made an offer of proof of the substance of the evidence, unless the substance was apparent from context, and (2) made the trial court aware of the legal ground(s) for admitting the evidence. See Golliday v. State, 560 S.W.3d 664, 668-70 (Tex. Crim. App. 2018). In other words, the party must comply with both Rule of Evidence 103(a)(2) and Rule of Appellate Procedure 33.1(a)(1). See id.; see also id. at 669 ("[B]oth Texas Rule of Appellate Procedure 33.1 and Texas Rule of Evidence 103 are judge-protecting rules of error preservation." (quoting Reyna v. State, 168 S.W.3d 173, 177 (Tex. Crim. App. 2005))). The offer of proof itself can convey the legal ground needed for compliance with Rule of Appellate Procedure 33.1(a)(1). See id. at 670-71.
Coulter complied with Rule of Evidence 103(a)(2)-she made an offer of proof of the substance of the alternative-perpetrator evidence that she wanted admitted-but not Rule of Appellate Procedure 33.1(a)(1), which requires that the appellant has articulated all legal grounds for admission. When arguing outside the presence of the jury about why the court should admit the evidence, her counsel never argued that the State or its witnesses had opened the door to the evidence. And nothing in the substance of the offer of proof "let the trial judge know . . . why" Coulter thought that the door was opened, much less "clearly enough for the judge to understand h[er] at a time when the judge [wa]s in the proper position to do something about" the argument that the State had opened the door. See id. at 670. We thus agree with the State that Coulter did not preserve her fourth issue.
II. Admission under the Constitution
In the rest of her first issue and in her second and third issues, Coulter advances several reasons under the Constitution for why the trial court should have admitted her alternative-perpetrator evidence and allowed her to cross-examine certain witnesses about it.
A. We cannot hold that the Court of Criminal Appeals' alternative-perpetrator rule is arbitrary, and the evidence did not meet the rule's "nexus" requirement.
In the rest of her first issue, Coulter contends that the trial court violated her constitutional right to present a complete defense by excluding her alternative-perpetrator evidence and restricting the jury's consideration of Chasten's conviction for felony assault family violence to the issue of his credibility. Under Wiley, there are two scenarios where rulings excluding evidence might rise to a constitutional violation. 74 S.W.3d at 405. The first is when the evidentiary rule itself is arbitrary because it prohibits the defendant from offering otherwise relevant, reliable evidence vital to his defense. Id. The second is when "a trial court's clearly erroneous ruling excluding otherwise relevant, reliable evidence which 'forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense.'" Id. Under this theory, "the rule itself is appropriate, but the trial court erroneously applies the rule to exclude admissible evidence to such an extent that it effectively prevents the defendant from presenting his defensive theory." Id. Coulter argues both that the alternative-perpetrator nexus requirement is arbitrary and that even if it is not, the trial court's ruling was clearly erroneous. As we have already concluded, the ruling was not clearly erroneous.
As for her argument that Wiley's nexus rule is arbitrary, this also fails. As an intermediate appellate court, we can't hold that a rule announced by the Court of Criminal Appeals is "arbitrary" and not abide by it. We overrule the rest of her first issue.
B. Prohibiting Coulter from cross-examining Chasten using the specific instances of his violence was not a Confrontation Clause violation.
In her second issue, Coulter contends that the trial court violated her Confrontation Clause rights by prohibiting her from cross-examining Chasten using the substance of the alternative-perpetrator evidence, outlined above. Her argument starts with the general "Sixth Amendment right to cross-examine a witness" by showing the witness's "possible bias, self-interest, or motives in testifying." See Johnson v. State, 490 S.W.3d 895, 909 (Tex. Crim. App. 2016). Under that right, the trial court should have allowed her counsel to cross-examine Chasten about the specific instances tending to show his violent character, Coulter argues, because he, as "the alternative suspect," had "a bias in favor of himself, a motive to testify falsely of his gentle disposition and his interest in the outcome of trial." See, e.g., Robisheaux v. State, 483 S.W.3d 205, 224 (Tex. App.-Austin 2016, pet. ref'd) ("[T]here is a distinction between an attack on the general credibility of a witness and a more specific 'attack on credibility that reveals "possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand."'" (quoting Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009))).
The scope of cross-examination, including what evidence may be admitted through cross-examination, is generally committed to the trial court's discretion. See Johnson, 490 S.W.3d at 908-10; Carroll v. State, 916 S.W.2d 494, 497-98 (Tex. Crim. App. 1996). But the trial court has no discretion to limit cross-examination so much that the court prevents the defendant from eliciting matters required to be admissible by the Confrontation Clause. See Johnson, 490 S.W.3d at 908-10, 913; Carroll, 916 S.W.2d at 497-98, 501.
The Confrontation Clause guarantees to criminal defendants the right "to be confronted with the witnesses against" them. U.S. Const. amend. VI. This right includes guaranteeing the opportunity for effective cross-examination of the State's witnesses about their biases. See Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986); Davis v. Alaska, 415 U.S. 308, 315-17 (1974); Johnson, 490 S.W.3d at 909-10; see also Pointer v. Texas, 380 U.S. 400, 406 (1965) (Confrontation Clause applies in state-court criminal trials). A defendant must "be permitted to explore any plausible basis for witness bias, whether or not the witness is willing to admit to it." Jones v. State, 571 S.W.3d 764, 769 (Tex. Crim. App. 2019). But cross-examination for bias is admissible by operation of the Confrontation Clause only when the cross-examination topic bears a "logical relationship" or "causal connection" to the witness's potential bias. See id. at 769-70.
We conclude that the trial court did not abuse its discretion by excluding the proposed cross-examination of Chasten using the specific instances of his conduct identified above. We hold that the proposed cross-examination does not have the required logical relationship or causal connection to his bias. The evidence about his hurting children-the checked box on the police form and pushing the oldest son and pulling his hair-was slight. The only witness who testified about the checked box (which was during Coulter's bill of exception) said that she did not remember saying anything to the police about it. The evidence of Chasten's having assaulted Kelly, Martinez, the neighbor, and the police officers is not evidence that he ever hurt the victim. Without a plausible logical relationship or causal connection linking the proffered cross-examination to Chasten's bias (because he was accusing Coulter of injuring the victim), the trial court was not required under the Confrontation Clause to allow the proposed cross-examination. See id. Because Coulter had and used other avenues for cross-examining Chasten about his biases, such as his family-violence convictions, how close in time the most recent one was to the day of the victim's injuries, whether Chasten had drunk alcohol or taken drugs the night before that day, his status as the last adult to have possession of the victim before putting him into Martinez's car, and his leaving the middle son at Coulter's home after the ambulance left, there is no Confrontation Clause violation here. See Johnson v. State, 433 S.W.3d 546, 557 (Tex. Crim. App. 2014) ("Only when the trial court's limitation on cross-examination sweeps so broadly as to render the examination wholly ineffective can it be said that the trial court commits an error of constitutional dimension. And, on the facts of this case, we are simply unwilling to say that the trial court's limitation so deprived the appellant of an important untrod avenue of examining the witnesses for bias as to leave his overall opportunity for cross-examination ineffective.").
Even if the exclusion of the proffered cross-examination violated the Confrontation Clause, it still would not entitle Coulter to a reversal. We do not reverse a judgment of conviction for constitutional error when we "determine[] beyond a reasonable doubt that the error did not contribute to the conviction." Tex.R.App.P. 44.2(a). When conducting such a harmless-error review of an exclusion of cross-examination in violation of the Confrontation Clause, we consider factors like "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Jones, 571 S.W.3d at 770-72 & n.5 (quoting and applying Van Arsdall, 475 U.S. at 684).
As discussed above, admitting alternative-perpetrator evidence requires proof of a nexus between the purported alternative perpetrator and the offense charged, and that nexus was lacking here because nothing in the record suggests any act by which Chasten harmed the victim near in time to the day in question. In this way, "the overall strength of the prosecution's case, " see id. at 770 n.5 (quoting Van Arsdall, 475 U.S. at 684), was strong because it was not undermined by the alternative-perpetrator theory.
On the "importance of [Chasten's] testimony," whether it "was cumulative," and "the presence or absence of evidence corroborating or contradicting" his testimony "on material points," see id. (quoting Van Arsdall, 475 U.S. at 684), his direct-examination testimony offered nothing material that was not testified to by other witnesses. He testified that the victim was a happy and healthy baby before the day in question; so did Kelly and Martinez. He testified that the morning of the day in question was normal for the family, including for the victim, and that the victim seemed uninjured all the way through putting him in Martinez's car; so did Kelly and Martinez. And Chasten, Kelly, and Martinez all testified about suspecting Coulter of having injured the middle son in the past, trying to find new daycare arrangements, and the timeline from Kelly's receiving the paramedic's call through the victim's hospital stay and affirmed that Chasten did not hurt him.
Although Coulter's counsel was prohibited from cross-examining Chasten using the instances of his violent conduct, "the extent of the cross-examination otherwise permitted," see id. (quoting Van Arsdall, 475 U.S. at 684), included cross-examining him about his credibility. Coulter's counsel used Chasten's felony conviction for assault family violence and misdemeanor conviction for assault family violence, which the prosecutor had raised before the jury. The cross-examination next established that Coulter seemed distraught when Chasten arrived at her home after the injury to the victim. It established that Chasten was "the last one that had possession of [the victim] at [their] house" before putting him in Martinez's car. And it established that Chasten left the middle son at Coulter's home after the ambulance had taken the victim away. Coulter thus had opportunities, and used them, to undermine Chasten's credibility and present her theory of the case.
Finally, the expert medical testimony presented by the State lent significant strength to its case. The emergency-medicine physician's, pediatric hospitalist's, and child neurologist's testimony explained that the victim's injuries could have resulted only from intentional abuse by an adult and could have been inflicted only during the time that Coulter was the only adult nearby. Their testimony included specifically explaining that his injuries would have led to immediate symptoms like vomiting, lethargy, inability to move, or seizures, and the hospitalist specifically rejected that any "slow bleed" could have been involved, although the paramedic who testified and the child neurologist each suggested that slow bleeds could exist. "Slow bleed" was one of Coulter's theories during her case-in-chief, which theory would allow for a larger window of time during which the victim could have been injured, thereby encompassing Chasten. But Coulter's expert medical witness admitted on cross-examination that "slow bleed" theory suffers from a lack of published and peer-reviewed supporting literature and that the victim's injuries were "inflicted" and not spontaneous.
In sum, we conclude beyond a reasonable doubt that prohibiting Coulter from cross-examining Chasten using his past instances of violence did not contribute to the conviction. See Tex. R. App. P. 44.2(a). The jury heard about his two convictions for assault family violence; heard matters undermining his credibility; and, "[w]e are confident beyond a reasonable doubt," would have rejected the alternative-perpetrator theory even if it had heard more about Chasten's past violence because of the expert medical testimony in the State's favor. See Jones, 571 S.W.3d at 771-72. Even if there was a Confrontation Clause violation, it was harmless. We thus overrule Coulter's second issue.
C. The jury was not left with the false impression that Chasten was "a loving father."
In her third issue, Coulter contends that she was deprived of her constitutional right to a fair trial because the jury was left with a false impression about Chasten because the trial court excluded the alternative-perpetrator evidence. She argues that the State's "presentation of Chasten left the jury with the impression of a loving father who merely had some past scrapes with the law," which "opened the door to counteracting evidence, even if otherwise inadmissible." The trial court, she says, thus erred by "excluding evidence which corrects" that "demonstrably false" impression. She argues in effect that she should have gotten to fill in blanks about Chasten that the State's case left open.
Her appellate brief groups as one her arguments under her fourth issue, about the State's "opening the door," and those under this third issue, and she cites as support two "opening the door" casesDelk v. State, 855 S.W.2d 700, 704-05 (Tex. Crim. App. 1993) (holding that State's witness's answers did not open the door to cross-examining him with otherwise inadmissible prior convictions because his answers did not leave a false impression about his past law-abiding behavior or lack thereof), overruled on other grounds by Ex parte Moreno, 245 S.W.3d 419, 425 & n.18 (Tex. Crim. App. 2008), and Prescott v. State, 744 S.W.2d 128, 131-33 (Tex. Crim. App. 1988) (holding that trial court erred by allowing State to cross-examine defendant with a "prior felony conviction which had not yet become final" because defendant's testimony had not opened the door to the topic).
Some exclusions of evidence according to the evidentiary rules can still so deprive a defendant of a fair trial that the exclusion violates the defendant's constitutional right to due process. See, e.g., Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973); cf. Wells v. State, 611 S.W.3d 396, 423 (Tex. Crim. App. 2020) ("The excluded video segment was not critical to Appellant's defense, and the trial court's exclusion of it did not deprive Appellant of a fundamentally fair trial." (citing Chambers, 410 U.S. at 302-03)); Duggan v. State, 778 S.W.2d 465, 469 (Tex. Crim. App. 1989) ("Because false evidence corrupts the truth seeking function of trial, a new trial will be necessary unless the false evidence does not violate the accused's right to due process. Error such as this is subject to the harm analysis found in [predecessor to Rule of Appellate Procedure 44.2(a)]."). Coulter's argument that she was deprived of a fair trial turns on her view that the State's case left the jury with the false impression that Chasten was "a loving father who merely had some past scrapes with the law."
But the jury was not left with that false impression. True, Chasten and Kelly testified that he was an involved father, helped with caring for the children by taking them to doctor visits, and never hurt the victim. But the jury also learned of his felony conviction for assault family violence, misdemeanor conviction for assault family violence, and convictions for burglaries and forgery of a financial instrument. The jury thus had before it evidence of his past family-violence assaults and so would not have had the impression of Chasten that he was a loving father despite not also having the chance to hear about the checked box on the police form or his pulling the oldest son's hair and pushing him. See Delk v. State, 855 S.W.2d 700, 705 (Tex. Crim. App. 1993) ("Because [State's witness]'s answers did not leave a false impression and therefore did not open the door to impeachment, we hold that it was not error to prevent appellant from inquiring into [same witness]'s criminal history."), overruled on other grounds by Ex parte Moreno, 245 S.W.3d 419, 425 & n.18 (Tex. Crim. App. 2008); see also In re J.O.A., 283 S.W.3d 336, 345-46 (Tex. 2009) (evidence of father's domestic violence against mother is evidence that father endangered child); L.B. v. Texas Dep't of Fam. & Protective Servs., No. 03-09-00429-CV, 2010 WL 1404608, at *5 (Tex. App.-Austin Apr. 9, 2010, no pet.) (mem. op.) (exposing a child to domestic violence committed against someone other than that child still endangers that child). Without a false impression that Chasten was "a loving father," Coulter's third issue fails, and we overrule it.
ADMISSION OF EVIDENCE OF INJURIES TO THE MIDDLE SON
Coulter groups together her arguments in support of her sixth and seventh issues. By them, she contends that the trial court's admission under Rule 404(b) of the evidence of the earlier injuries to the Richters' middle son violated her due-process right to a fair trial and her Confrontation Clause right to cross-examination. She argues that admitting evidence of those injuries under Rule 404(b) "worked only to shield Chasten Richter while advancing the theory that [she] injured" the middle son, making Rule 404(b) "an impenetrable obstacle to her only defense." Her opposition is not that Rule 404(b) was misapplied here but that Rule 404(b) itself violates the Constitution under these circumstances-she relies on authority for when "[a] rule of evidence may offend the Due Process Clause" and when "the constitution is offended" by a "state evidentiary rule."
She asks that we apply the constitutional rule from Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992), overruled on other grounds by Riley v. State, 889 S.W.2d 290, 301 (Tex. Crim. App. 1993) (op. on reh'g). Under it,
[R]ules for the admission and exclusion of evidence should be found offensive to notions of fundamental fairness embodied in the United States Constitution only when, (1) without a rational basis, they disadvantage the defendant more severely than they do the State or (2) arbitrarily exclude reliable defensive evidence without achieving a superior social benefit.Id. at 208; accord Cheek v. State, 119 S.W.3d 475, 481-82 (Tex. App.-El Paso 2003, no pet.). Coulter's complaint is not about an exclusion of evidence; it is about the admission of the evidence of the earlier injuries to the middle son.
Under Fuller, we see no severe disadvantage to Coulter as compared to the State under Rule 404(b). The evidence of the prior injuries came in, and the jury could have believed that either Chasten or Coulter caused them. The jury heard that Kelly or family members would discover the injuries not long after the children returned from Coulter's home but that Coulter always denied any involvement. Coulter's counsel provided effective cross-examination when he elicited from both Kelly and Martinez that they continued offering the children into Coulter's care even after suspecting Coulter of causing the injuries. Counsel also elicited from Martinez and Chasten that they left the middle son at Coulter's home after the ambulance drove away with the victim, which conflicted with their testimony about their suspicions that Coulter had injured the middle son in the past. The jury also heard that Chasten had been twice convicted of assault family violence but denied causing these injuries. After hearing all this, the jury seemingly chose to disbelieve Coulter and believe Chasten, given that it believed that Coulter caused the injury at issue to the victim. We cannot conclude that the trial court's admission of the evidence under Rule 404(b) violated Coulter's constitutional rights, and we overrule her sixth and seventh issues.
ADMISSION OF STATE'S EXHIBIT 4
Finally, in her eighth issue, Coulter contends that the trial court should not have admitted State's Exhibit 4, a color photograph of the victim taken while he was in the hospital. Coulter's arguments proceed under both Rules 401 and 403. Exhibit 4 shows him lying unconscious on a hospital bed with many medical devices attached to him and a small stuffed animal near his hand.
Relevant evidence is generally admissible, and evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence" and "the fact is of consequence in determining the action." See Tex. R. Evid. 401, 402. Exhibit 4 was relevant to the element of the offense, which the State needed to prove beyond a reasonable doubt, that the victim suffered "serious bodily injury." See Tex. Penal Code § 22.04(a)(1). Exhibit 4 suggests a hospitalization requiring intensive medical intervention, given the number of devices attached to the victim's body, and shows him unconscious. All this tends to show that he had suffered serious bodily injury. We thus overrule this portion of Coulter's eighth issue.
Even if relevant, evidence still may be excluded "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. Coulter argues that Exhibit 4 risked inflaming the jury. When reviewing whether a trial court should have admitted a photograph, we apply the abuse-of-discretion standard and
should consider: the number of photographs, the size of the photograph, whether it is in color or black and white, the detail shown in the photograph, whether the photograph is gruesome, whether the body is naked or clothed, and whether the body has been altered since the crime in some way that might enhance the gruesomeness of the photograph to the appellant's detriment.Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006). Exhibit 4 is not gruesome-no wounds are visible on the victim, nor is any blood or other bodily fluid visible. He is shown clothed by a diaper and is otherwise largely covered by medical devices, particularly on his torso and lower legs. Exhibit 4 is the only photograph in the record showing him injured. The next most similar kinds of exhibits admitted are radiological images of the interior of his body. Exhibit 4 had some relevance to the State's case because it gave the jury a sense of the seriousness of his injuries, although the expert medical witnesses testified about that seriousness as well. In all, we hold that the trial court did not abuse its discretion by admitting this non-gruesome hospital photograph. See id. at 788 ("The photographs in question were probative of the crime scene and the injuries received by the victim, were necessary for the State in developing its case, and, because they were not overly gruesome, the photographs did not pose the potential of impressing the jury in some irrational way. The trial court did not abuse its discretion in admitting these photographs, as the danger of unfair prejudice did not substantially outweigh the probative value of the photographs."). We overrule Coulter's eighth issue.
CONCLUSION
We affirm the trial court's judgment.
Affirmed