Allen v. State

675 S.W.3d 47

John Wesley ALLEN, Jr., Appellant

v.The STATE of Texas, Appellee

NO. 12-22-00195-CR

Court of Appeals of Texas, Tyler.

Opinion delivered June 30, 2023

W. Stephen Shires, Center, for Appellant.

Jonathan H. Richey, for Appellee.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

MEMORANDUM OPINION

James T. Worthen, Chief Justice

John Wesley Allen, Jr. appeals his conviction for continuous sexual abuse of a young child. In two issues, Appellant argues that (1) when the trial court overruled his motion to copy the forensic interview of the victim conducted by the local Child Advocacy Center, it abused its discretion because it improperly relied on an unconstitutional statute in reaching that decision and (2) the trial court abused its discretion by sustaining the State's objection to his attempt to elicit testimony from the victim about his sexual history. We affirm.

BACKGROUND

Appellant was charged by indictment with continuous sexual abuse of a young child and pleaded "not guilty." Prior to trial, Appellant filed a Motion to Permit Inspection/Copy of various pieces of the State's evidence, including the forensic interview of the victim conducted by the local Child Advocacy Center. Following a hearing on the matter, the trial court denied Appellant's motion.

The matter proceeded to a jury trial. The jury found Appellant "guilty" as charged and, following a trial on punishment, assessed his punishment at imprisonment for life. The trial court sentenced Appellant accordingly, and this appeal followed.

CONSTITUTIONALITY OF ARTICLE 39.15(d)

In his first issue, Appellant argues that Texas Code of Criminal Procedure, Article 39.15(d),¹ upon which the trial court partially relied in denying his motion to copy the forensic interview of the victim, is an unconstitutional violation to his procedural due process rights.²

Standard of Review

A trial court's ruling on pretrial discovery is reviewed for an abuse of discretion. Sopko v. State , 637 S.W.3d 252, 256 (Tex. App.–Fort Worth 2021, no pet.). Whether a statute is facially constitutional is a question of law that we review de novo. Ex parte Lo , 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When the constitutionality of a statute is attacked, we usually begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily. Id. at 14–15. The burden normally rests upon the person challenging the statute to establish its unconstitutionality. Id. at 15. A party raising a facial challenge to the constitutionality of a statute must demonstrate that the statute operates unconstitutionally in all of its applications. State ex rel. Lykos v. Fine , 330 S.W.3d 904, 908 (Tex. Crim. App. 2011). In a facial challenge to a statute's constitutionality, courts consider the statute only as it is written, rather than how it operates in practice. Id.

Governing Law

Texas Code of Criminal Procedure, Article 34.14 requires that the state produce certain material evidence in its possession in a criminal proceeding. See TEX. CODE CRIM. PROC. ANN. art 39.14(a) (West Supp. 2022). Article 34.14 sets forth that it is subject to the restrictions provided by Article 39.15 and Texas Family Code Section 264.408(d-1). See id. Section 264.408(d-1) provides that an electronic recording of an interview with a child under Section 264.408(d) is subject to production under Texas Code of Criminal Procedure, Article 39.14. See TEX. FAM. CODE ANN. § 264.408(d-1) (West Supp. 2022). However, Section 264.408(d-1) further provides that a court shall deny any request by a defendant to copy, photograph, duplicate, or otherwise reproduce an electronic recording of such an interview, provided that the prosecuting attorney makes the electronic recording reasonably available to the defendant in the same manner as property or material may be made available to defendants, attorneys, and expert witnesses under Texas Code of Criminal Procedure, Article 39.15(d). See id. § 264.408(d-1). Article 39.15(d) provides that material is considered to be reasonably available to the defendant if, at a facility under the control of the state, the state provides ample opportunity for the inspection, viewing, and examination of the material by the defendant, the defendant's attorney, and any individual the defendant seeks to qualify to provide expert testimony at trial. See TEX. CODE CRIM. PROC. ANN. art. 39.15(d) (West 2018).

Discussion

Appellant argues that Section 39.15(d) is facially unconstitutional because it violates his procedural due process rights. Specifically, he contends that, implicit in the requirements of procedural due process, is the right of the defendant to have possession or knowledge of the opposing evidence within a reasonable time frame and under the proper circumstances, which allows his counsel fully to prepare for trial. And, according to Appellant, Article 39.15(d) violates these requirements by placing unduly burdensome and unnecessary limitations on a defendant's ability to prepare for trial.

Appellant suggests that analysis of this issue in a procedural-due-process context is a "largely unexplored" issue of law. We disagree. In Gonzalez v. State , the First Court of Appeals similarly considered this issue, both in the context of a defendant's right to cross examination under the Confrontation Clause and, necessarily, with regard to his due process rights. See Gonzalez v. State , 522 S.W.3d 48, 57–58 (Tex. App.–Houston [1st Dist.] 2017, no pet.) (setting forth appellant's third issue with reference to both Amendments VI and XIV of United States Constitution ). In Gonzalez , Appellant argued that "his limited access to the [victims’] forensic interviews under Article 39.15 interfered with his counsel's and his expert's preparations[.]" Similarly, Appellant argues that Section 39.15(d) violates his procedural-due-process rights because it interferes with his right to have possession or knowledge of the opposing evidence within a reasonable time frame and under the proper circumstances so that his counsel fully can prepare for trial.

"[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials." Holmes v. S. Carolina , 547 U.S. 319, 324, 126 S. Ct. 1727, 1731, 164 L.Ed.2d 503 (2006). However, no state may deprive any person of life, liberty, or property, without due process of law. See U.S. CONST. amend. XIV. And evidentiary rules should not infringe upon defendant's ability to present a complete defense. See Holmes , 547 U.S. at 324, 126 S. Ct. at 1731 ; Smith v. State , 236 S.W.3d 282, 292 (Tex. App.–Houston [1st Dist.] 2007, pet. ref'd) ; see also Gonzalez , 522 S.W.3d at 60.

Like the appellant in Gonzalez , Appellant relies heavily on the holding in Davis v. Alaska , 415 U.S. 308, 320, 94 S. Ct. 1105, 1112, 39 L.Ed.2d 347 (1974). In Davis , the Supreme Court sought to determine whether a defendant's rights under the Sixth Amendment's Confrontation Clause could overcome a state's interest in keeping juvenile records confidential. See id., 415 U.S. at 309, 94 S. Ct. at 1107. The Court held that under the specific facts presented, Davis's confrontation rights would be violated if he could not show the potential bias of the juvenile witness against him. Id. , 415 U.S. at 319, 94 S. Ct. at 1112. The facts before the court showed that the juvenile witness was on probation for burglarizing two cabins and had the potential for bias when an emptied safe was found near his family's property. Id. , 415 U.S. at 310–11, 317–18, 94 S. Ct. at 1107–08, 1111.

After extensive discussion of Davis , the court of appeals in Gonzalez noted that the court of criminal appeals held that Davis is limited by its facts because, there, the defendant completely was deprived of the opportunity to develop his theory of the witness's "patently obvious" bias or motive for testifying. See Gonzalez , 522 S.W.3d at 62 (citing Carmona v. State , 698 S.W.2d 100, 104–105 (Tex. Crim. App. 1985) ). Thus, it opined, Davis is not a per se rule mandating the reversal of a conviction limiting cross examination into juvenile offenses but a rationale that criminal defendants be allowed an effective cross examination. See Gonzalez , 522 S.W.3d at 62 (citing Carmona , 698 S.W.2d at 103–04 ). The court in Gonzalez decided that Davis addresses the admissibility of testimony when the questioner can show a logical connection between the testimony and the witness's bias, not the access a defendant must have to impeachment evidence generally in order to prepare for cross examination. See Gonzalez , 522 S.W.3d at 63. Thus, the court concluded that Davis was inapplicable to the issue of whether access to evidence without being afforded the opportunity to copy it is sufficient to allow for a defendant to prepare for cross examination. See id. (citing In re W.E.J , 494 S.W.3d 178, 180 (Tex. App.–Waco 2015, pet. denied) ). We agree with the reasoning of our sister courts both in Gonzalez and W.E.J. and likewise hold that Davis is limited by its facts and inapplicable to the issue Appellant raises in the case at hand.

We reiterate that we begin with the presumption that the statute is valid and that the legislature has not acted unreasonably or arbitrarily and the burden rests upon Appellant to establish that the statute is unconstitutional. See Ex parte Lo , 424 S.W.3d at 14–15. In spite of the denial of a motion to copy material evidence under the mandates set forth herein, Article 39.15(d) undoubtedly provides a defendant, his counsel, or his expert witness the opportunity to access and review information necessary to prepare for trial. See TEX. CODE CRIM. PROC. ANN. art 39.15(d). The fact that a defendant's counsel must review the information, as Appellant describes it, "in the den of the enemy" during normal business hours, rather than in the "comfortable confines of his office" whenever he chooses, does not serve to render ...