Hopper v. State

RONNIE MICHAEL HOPPER , Appellant v. THE STATE OF TEXAS

No. 02-18-00476-CR

Court of Appeals Second Appellate District of Texas at Fort Worth

February 6, 2020

On Appeal from the 30th District Court Wichita County, Texas

Trial Court No. 60,066-A

Before Sudderth, C.J.; Womack and Wallach, JJ.

Memorandum Opinion by Justice Wallach MEMORANDUM OPINION

A jury found Appellant Ronnie Michael Hopper guilty of one count of aggravated sexual assault of a child under the age of fourteen (Count One) and two counts of indecency with a child by sexual conduct (Counts Two and Three). The jury assessed his punishment at twenty-five years' confinement for aggravated sexual assault of a child and three years' confinement for each count of indecency with a child by sexual conduct. See Tex. Penal Code Ann. §§ 21.11(a)(1), 22.021(a). The trial court sentenced Appellant accordingly, ordering that the sentences for Counts One and Two run concurrently and that the sentence for Count Three run consecutively to the other two sentences.

Appellant filed motions for new trial, which the trial court denied. Appellant then timely filed a notice of appeal. In three points, he complains that the trial court erred by excluding impeachment evidence, by admitting inadmissible hearsay, and by refusing to give the jury an instruction to disregard after sustaining his objection to evidence of extraneous conduct. Because we hold that the trial court did not reversibly err, we affirm the trial court's judgments.

BRIEF FACTS¹

Complainant A.R. (Amy)² reported to her seventh-grade math teacher that Appellant, her stepfather, had sexually abused her. Then, Amy told her school counselor that Appellant had sexually abused her that day and indicated by body movements that he had touched her breasts and genitals. The counselor called Amy's mother (Mother) and directed Amy to use her cell phone to call Mother as well. When Mother arrived at the school, she was very angry and accused Amy of lying about the sexual abuse.

The day after Amy reported Appellant's sexual abuse to her teacher and school counselor, Amy gave a detailed account to a forensic interviewer about Appellant's sexually abusing her over a period of time, specifically describing the sexual abuse that occurred the day before as well as another incident of sexual abuse that occurred approximately a year earlier. A sexual assault nurse examiner (SANE) then performed a medical examination of Amy. Amy told the SANE that Appellant had sexually abused her the previous day, and the SANE found discoloration, tearing, and abrasions on Amy's genitals consistent with her account.

Amy engaged in self-harm, cutting her arms and thighs, after reporting the sexual abuse. However, she had also engaged in cutting behavior before the alleged sexual abuse began. Because of the post-outcry cutting, Amy stayed a week in a mental health facility. Appellant was indicted for the sexual abuse prompting the outcry as well as for the incident of sexual abuse occurring approximately a year earlier that Amy relayed to the forensic interviewer.

DISCUSSION

I. Standard of Review

We review the admission or exclusion of evidence for an abuse of discretion, which the record shows only when the ruling falls outside the zone of reasonable disagreement. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Merrick v. State, 567 S.W.3d 359, 375 (Tex. App.—Fort Worth 2018, pet. ref'd). We will uphold the trial court's correct decision under any applicable legal theory even if the trial court gave a wrong or incomplete reason for its ruling. De la Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009); Qualls v. State, 547 S.W.3d 663, 675 (Tex. App.—Fort Worth 2018, pet. ref'd).

We also review the denial of an instruction to disregard evidence for an abuse of discretion. See Maldonado v. State, No. 10-11-00299-CR, 2013 WL 3847052, at *8 (Tex. App.—Waco July 25, 2013, no pet.) (mem. op., not designated for publication) ("[W]e will assume without deciding that the trial court abused itsdiscretion in failing to give an instruction to disregard" a question about a sawed-off shotgun that was in evidence); Lambertz v. State, No. 01-00-00633 CR, 2002 WL 1821982, at *3 (Tex. App.—Houston [1st Dist.] Aug. 8, 2002, pet. ref'd); cf. Stewart v. State, 221 S.W.3d 306, 310 (Tex. App.—Fort Worth 2007, no pet.) (holding standard of review for refusing curative instruction to line of questioning is abuse of discretion).

II. Impeachment

Appellant's first point challenges the exclusion of impeachment evidence against Amy. The trial court admitted Amy's post-outcry mental health records at trial. However, to support the defensive theory that Amy caused the injuries the SANE found during the exam, Appellant also wanted the trial court to admit Amy's pre-outcry writings and cell-phone data that showed she had depression and suicidal ideations, cut herself, and talked about sex with peers before the sexual abuse prompting her outcry.

Amy's pre-outcry writings that Appellant wanted the trial court to admit at trial were in a binder Mother found in Amy's bedroom after Amy moved out. The trial court admitted "the portions of the [binder] . . . that talk[] about [Amy's] feelings towards [Appellant]" as Defendant's Exhibit 3. However, the trial court excluded the rest of the binder's contents and all the cell-phone data.

As the Texas Court of Criminal Appeals has explained,

The Texas Rules of Evidence permit the defendant to cross-examine a witness for his purported bias, interest, and motive without undue limitation or arbitrary prohibition. Rule 404(b) permits the defense, as well as the prosecution, to offer evidence of other acts of misconduct to establish a person's motive for performing some act—such as making a false allegation against the defendant. Rule 613(b) permits a witness to be cross-examined on specific instances of conduct when they may establish his specific bias, self-interest, or motive for testifying.

Johnson v. State, 490 S.W.3d 895, 910 (Tex. Crim. App. 2016). Generally, limiting a defendant's right to cross-examine a witness is within a trial court's discretion. Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009). For impeachment evidence to be admissible, the defendant needs to establish a "causal connection or logical relationship" between the evidence and the witness's alleged bias or motive. Johnson v. State, 433 S.W.3d 546, 552 (Tex. Crim. App. 2014) (citation and internal quotation marks omitted); Tristan v. State, 393 S.W.3d 806, 810-11 (Tex. App.—Houston [1st Dist.] 2012, no pet.). We recognize that this requirement cannot impinge on a defendant's right "to explore any plausible basis for witness bias." Jones v. State, 571 S.W.3d 764, 769 (Tex. Crim. App. 2019); Pabon v. State, No. 02-18-00517-CR, 2019 WL 4122611, at *4 n.3 (Tex. App.—Fort Worth Aug. 29, 2019, no pet.) (mem. op., not designated for publication).

A. The State's Forfeiture Argument

The State argues that the trial court based its ruling excluding the proffered evidence on Rule 403 and that Appellant forfeited his point by not discussing Rule403 in his brief. The basis of the trial court's ruling is unclear. We will therefore address Appellant's first point.

B. No Preservation of a Constitutional Claim

Appellant references the Sixth Amendment right to cross-examination in the discussion of his first point, but, as the State argues, he did not raise a constitutional challenge to the exclusion of the impeachment evidence in the trial court. To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds, if not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Because Appellant did not raise a Sixth Amendment challenge to the exclusion of the impeachment evidence in the trial court, he did not preserve a constitutional complaint for appeal. See Golliday v. State, 560 S.W.3d 664, 670-71 (Tex. Crim. App. 2018). We therefore overrule that portion of his first point claiming the exclusion of the impeachment evidence violates his Sixth Amendment right to cross-examination.

C. Sex-Related Cell-Phone Data

Appellant argues on appeal that the exclusion of Amy's "sexually charged conversations with her peers" barred him from asking her about other possible causes of the discoloration, tearing, and abrasions on her genitals. The State argues that the excluded sex-related evidence was irrelevant under Rule 401 to show that a sourceother than Appellant was responsible for Amy's injuries that the SANE observed and that the evidence was alternatively inadmissible under Rule 412.

Evidence must be relevant to be admissible. Tex. R. Evid. 402. Evidence is relevant when "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." Tex. R. Evid. 401. Rule 412 generally excludes evidence of an alleged sexual assault victim's past sexual conduct. Tex. R. Evid. 412(a), (e). However, evidence of specific instances of an alleged victim's past sexual behavior is admissible if its probative value outweighs dangers of unfair prejudice and it

(A) is necessary to rebut or explain scientific or medical evidence offered by the prosecutor;

(B) concerns past sexual behavior with the defendant and is offered by the defendant to prove consent;

(C) relates to the victim's motive or bias;

(D) is admissible under Rule 609; or

(E) is constitutionally required to be admitted.

Tex. R. Evid. 412(b).

Our review of Appellant's Bill of Exceptions shows that Amy had the following textual exchange with a peer:

[Amy:] So u like [Charlie's] dick

[Faye:] Why[]?

[Amy:] Tell him the story about [Kay] Not actually getting raped

[Faye:] Not [Kay] when I was little I almost got raped[Amy:]

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