Johnson v. State

Keasler, J.,

filed a dissenting opinion, in which Keller, P.J., and Hervey, J., joined.

The Court concludes that H.H.’s sexual abuse of his sister he committed as a juvenile “was admissible under Texas Rule of Evidence 412 because it related to H.H.’s motive to fabricate his accusation, was constitutionally required to be admitted under the Confrontation Clause, and the probative value outweighed the danger of unfair prejudice.” 1 I dissent because neither Rule 412 nor the Confrontation Clause requires the evidence’s admission. Further, as a result of its incorrect interpretation of Rule 412 and the Confrontation Clause, the Court misapplies the standard of review.

Texas Rule of Evidence 412 permits the admission of a victim’s past sexual behavior if the evidence relates to the victim’s motivation or bias and the evidence’s probative value outweighs the danger of unfair prejudice. 2 While H.H.’s sexual abuse of his sister may have some minimal relevance relating to his motivation or bias to inculpate Johnson, the probative value of this evidence certainly does not outweigh the danger of unfair prejudice to H.H. First, the probative value of the evidence is objectively weak. That H.H.’s sexual acts committed as a juvenile bore directly on H.H.’s motivation to accuse Johnson of sexual assault because it would deflect *916 H.H.’s own blameworthiness for his own misdeeds is a tenuous connection at best. 3 Second, the Court wrongly concludes that the record does not contain any unfair prejudice because, on review of the cold record, H.H. “readily admitted, outside the presence of the jury, to being in counseling at the behest of his parents because he had been sexually molesting his sister for a number of years.” 4 He indeed answered the question; but as a reviewing court, “readily” is not an adjective this Court gets to use on this record. 5 H.H.’s answers to counsel’s questions under the assumption he was required to give them (and outside of the jury’s presence) does not support the Court’s claim that the record fails to reflect prejudice. The Court does not consider the potential prejudice to H.H. had he been forced to discuss the particulars of his sexual transgressions against his sister in front of twelve strangers in open court, even though the Court concedes the evidence would tend “to show that H.H. was a bad kid.” 6 Texas, like other states, places an important interest in protecting juvenile offenders’ anonymity. 7 “Our Family Code and Rules of Evidence explicitly protect that anonymity.” 8 Because the evidence’s minimal probative value was outweighed by a great danger of unfair prejudice, the court of appeals correctly held that the trial court did not abuse its discretion.

The Court correctly states that a defendant’s rights to confront and cross-examine witnesses are not unqualified. Trial judges “ ‘retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination,’ so long as those limits do not operate to infringe upon the Confrontation Clause’s guarantee of ‘an opportunity for effective cross-examination.’ ” 9 The Confrontation Clause does not guarantee cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. 10 Our opinion in Hammer v. State recognized that the Confrontation Clause may warrant the admission of evidence even if that evidence would normally be barred under our evi-dentiary rules. 11 We further clarified the point in holding that “the constitution is offended if the state evidentiary rule would prohibit [a defendant] from cross-examining a witness concerning possible motives, bias, and prejudice to such an extent that he could not present a vital defensive theory.” 12 In Hammer, we held that the trial court abused its discretion by prohibiting cross-examination of the alleged victim with her past false accusations of sexual misconduct on the state *917 evidentiary grounds, not that the Confrontation Clause required its admission. 13 The Court noted that the Confrontation Clause might have required admission of the past false accusations “if appellant had not been able to show that motive [to fabricate] through other means.” 14 However, because Hammer presented to the jury his general defensive theory through alternate testimony, the evidence’s exclusion did not offend the Confrontation Clause. 15

Like Hammer, Johnson was able to establish the victim’s motive to fabricate his sexual-assault claims against him and advance a substantial defensive theory. On cross-examination, Johnson elicited testimony from H.H. that he (1) knew his allegation would get Johnson in trouble, (2) was mad at Johnson for not giving him the Nintendo game system, (3) had been caught shoplifting, (4) had a poor relationship with his parents, (5) was in counseling for a variety of problems, (6) and had a pornography habit. Johnson’s counsel used all of these developed points to undermine H.H.’s credibility in closing arguments. Because Johnson had the opportunity to establish H.H.’s potential ill motive and bias towards him, the Confrontation Clause did not require admission of H.H.’s specific conduct as a juvenile.

The Court concludes that admission of H.H.’s juvenile sexual acts were necessary to satisfy the Sixth Amendment’s right to confrontation not because without it he could not present a vital defensive theory, but rather because without the evidence, the defensive theory was not as strong as the majority thinks it could have been. The Court’s stated rationale is that, while Johnson was able to impeach H.H., the specific acts of juvenile conduct “would have added further support to [the motivation] theory.” 16 That is simply not the test to determine the scope of cross-examination demanded by the Confrontation Clause. 17

As long as the judge permits sufficient cross-examination to satisfy the Sixth Amendment, the trial judge has the ability to restrict the scope of cross-examination. 18 When a trial judge decides to limit or exclude topics from cross-examination, his decision will be reviewed for an abuse of discretion. 19 After Johnson elicited H.H.’s testimony, he had effectively established H.H.’s bias and the trial court did not abuse its discretion by preventing Johnson from presenting evidence “tending only marginally to enhance his allegation of bias against the witness.” 20 In light of the marginally relevant evidence that must be balanced against its weighty prejudice potential, the Court’s judgment reflects a de novo standard of review, instead of the proper deferential abuse-of-discretion standard. Because the Sixth Amendment did not require the evidence’s admission, the decision to prohibit its admission was reasonable and fell within the judge’s wide latitude and the zone of reasonable dis *918 agreement to limit Johnson’s method of cross-examination. The court of appeals rightly concluded as much, and the Court should affirm its judgment.

. Ante, at 913.

. Tex. R. Evid 412(b)(2)(C) & (b)(3).

. See Irby v. State, 327 S.W.3d 138, 152 (Tex.Crim.App.2010) (interpreting Davis v. Alaska, 415 U.S. 308 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974), and requiring a "logical connection between the evidence suggesting bias or motive and the witness’s testimony.”).

. Ante, at 911.

. See, e.g., State v. Mendoza, 365 S.W.3d 666, 669 (Tex.Crim.App.2012) (recognizing this Court’s limitations in rendering qualitative opinions about witnesses’ testimony).

. Ante, at 913.

. Irby, 327 S.W.3d at 152 .

. Id. (referencing Texas Family Code § 51.13(b) and Rule of Evidence 609(d)).

. Thaxton Johnson v. State, 433 S.W.3d 546, 551-52 (Tex.Crim.App.2014) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986)) (emphasis in original).

. Van Arsdall, 475 U.S. at 679 , 106 S.Ct. 1431 .

. 296 S.W.3d 555, 567-68 (Tex.Crim.App.2009).

. Id. at 562-63.

. Id. at 567-68, 570.

. Id. at 567-68.

. Id. at 568.

. Ante, at 914.

. See Thaxton Johnson, 433 S.W.3d at 557 (‘‘[A] less than optimal’ opportunity for cross-examination does not, of itself, violate the Sixth Amendment.”).

. Id. at 551-52 .

. See Hammer, 296 S.W.3d at 562-63 ; Castle v. State, 748 S.W.2d 230, 233 (Tex.Crim.App.1988) ("Generally, the scope of cross-examination is within the control of the trial court and in the exercise of its own discretion.”).

. See Thaxton Johnson, 433 S.W.3d at 557 .