Petition for Writ of Certiorari — McNaspy v. Texas

ay PILE DO

wo of 16 6 st 1 a

EEE i -§ » * _——e«

In The

Supreme Court of the United States

S

ROBERT PAUL McNASPY,

* Petitioner,

Vv.

THE STATE OF TEXAS,

Respondent.

On Petition For A Writ Of Certiorari

To The Fourteenth Court Of Appeals

For The State Of Texas

o

PETITION FOR A WRIT OF CERTIORARI

Jim L. Defoyd

Counsel of Record

(UDOM AND LEVIN

2813 West T.C. Jester Boulevard

Houston, Texas 77018

713.685.5000 — Telephone

713.685.5020 — Facsimile

VS

3

QUESTIONS PRESENTED

Is the Sixth Amendment right to confrontation of

witnesses waived by an accused’s attorney’s failure to

object to the proceeding?

Is Texas Rule of Evidence 412 unconstitutional in that,

unlike Federal Rule 412, after which it is patterned, it

fails to allow an accused to confront witnesses against

him contrary to the dictates of the Sixth Amendment

to the United States Constitution?

OPINION BELOW

The opinion of the Court of Appeals is unreported.

The judgment, findings, and conclusions of the district

court are unreported.

JUDGMENT

The judgment of this Court is invoked under 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides in relevant part “in all criminal prosecu-

tions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him;” The Four-

teenth Amendment to the United States Constitution pro-

vides in relevant part “ . . . nor shall any state deprive

any person of life, liberty, or property, without due pro-

cess of law... . ”

STATEMENT

A. BACKGROUND

This case arose when the trial judge conducted an in

camera hearing during the cross-examination of the com-

plaining witness by counsel for the Defendant. Neither

the accused nor his counsel were allowed in chambers

while the Judge conducted the examination of the com-

plaining witness. Defendant's counsel did not object. This

examination was conducted pursuant to Rule 412, Texas

Rules of Evidence. The question presented is whether

Texas Rule 412 is unconstitutional for allowing a pro-

cédure contrary to the mandate of the Sixth Amendment

requiring that an accused be allowed to confront the

witnesses against him. Please refer to Appendix 16a for

the full text of Rule 412, Texas Rules of Evidence.

Defendant was charged with the felony offense of

sexual assault. After a jury was seated and testimony

begun, the complaining witness was called to testify by

the State. During cross-examination, Defendant’s counsel

approached the bench, pursuant to Texas Rule 412, Texas

Rules of Criminal Evidence, and requested permission to

question the complaining witness regarding her prior

sexual conduct as it was necessary to prove his defense of

motive and bias. Pursuant to Rule 412, the trial judge

examined the complaining witness in camera to deter-

mine the admissibility of the testimony. This examination

of the complaining witness was conducted without the

presence of the Defendant or Defendant’s attorney.

Defendant’s counsel did not register an objection.

B. PROCEEDINGS BELOW

The Petitioner was tried and convicted in the 228th

Criminal District Court of Harris County, Texas, of the

offense of sexual assault and punishment was assessed by

the jury at ten years confinement in the Texas Department

of Corrections. This conviction was confirmed by the

Court of Appeals for the Fourteenth District of Texas on

'

July 29, 1999. A Motion for Rehearing was overruled by

the Court of Appeals for the Fourteenth District of Texas

on October 21, 1999. A Petition for Discretionary Review

was refused by the Court of Criminal Appeals for the

State of Texas on April 12, 2000. Copies of these opinions

are attached to this petition.

¢

REASONS FOR GRANTING THE PETITION

This Court has jurisdiction over the Petition.

Concerning the Sixth Amendment Right of Confron-

tation, this Court held in Brookhart v. Janis, 384 U.S. 1, 16

L. Ed. 2d 314, 86 S. Ct. 1245 (1966), that the alleged

waiver of a federally guaranteed constitutional right is a

federal question controlled by federal law. Further, the

Court stated that there was a presumption against the

waiver of federal constitutional rights and, the Court

continued, in order for a waiver to be effective, it must be

clearly established that it was an intentional relinquish-

ment or abandonment of a known right or’ privilege.

Further, as this Court held in Douglas v. Alabama, 380 U.S.

415, 13 L. Ed. 2d 934, 85 S. Ct. 1074 (1965), the failure to

object does not defeat a federally protected constitutional

right. Thus, the failure of defense counsel to object did

not waive Defendant’s constitutional Right of Confronta-

tion as provided by the Sixth Amendment and the Four-

teenth Amendment to the Constitution of the United

States.

This case arises out of the Texas “Rape Shield” stat-

ute, Rule 412, Texas Rules of Evidence, which requires a

Defendant to inform the judge out of the presence of the

jury of his intention to introduce evidence regarding

prior sexual conduct of the complaining witness. Rule 412

states in part “after this notice, the Court shall conduct an

in camera hearing” to determine if the evidence is admis-

sible. Rule 412 does not address the presence of the

Defendant or his attorney during this examination of the

witness. It is this fatal flaw in the rule which brings us to

this Court. Rule 412 of the Texas Rules of Evidence is

modeled after Rule 412 of the Federal Rules of Evidence.

The Federal rule pointedly states in pertinent part

“ ... the Court must conduct a hearing in camera and

AFFORD THE VICTIM AND PARTIES A RIGHT TO

ATTEND AND BE HEARD.” (emphasis added). Thus,

the right to confrontation of witnesses is preserved by the

explicit wording of the Federal rule. Texas Rule 412,

omitting this important portion of the Federal rule,

appears to allow the trial judge to use his own judgment

in allowing the attorney for the accused as well as the

accused himself to appear or not appear in his chambers

while he conducts the interrogation. If the judge elects to

exclude them and defense counsel does not object, the

accused is deemed by Texas law to have waived his Sixth

Amendment right to confrontation. That is what occurred

in the instant case. If counsel does object, the appeals

court will reverse and remand because of the unconstitu-

tional procedure allowed by Rule 412. This procedural

trap which allows an unconstitutional rule to continue to

violate an accused’s Sixth Amendment right should not

be allowed to trap the unaware. See Sanchez v. State, 702

S.W. 2d 258 (Texas Appeals, Dallas — 1986). This case was

on all fours with the case before the Court and was

reversed and remanded because the procedure violated

the Sixth Amendment right to confront witnesses. If there

5

is no affirmative showing in the record that the Defen-

dant affirmatively waived his right under the Sixth

Amendment to confront the witnesses against him, then it

has consistently been the holding of this Court that there

was no waiver. See McCarthy v. U.S., 394 U.S. 459, 22 L.

Ed. 2d 418, 89 S. Ct. 1166 (1969).

Finally, this writ should be granted in order to pre-

vent the State of Texas by its Rules of Evidence or other-

wise from a slow chipping away at the rock of

fundamental constitutional rights such as the Sixth

Amendment right to confrontation of witnesses. Texas

Rule of Evidence 412 holds itself out as following the

Federal rule to help victims of rape from improper and

harassing questions. However, it fails to balance the vic-

tim’s protection with the protection of the accused

because Rule 412 strips the accused of his Sixth Amend-

ment rights. Therefore, Rule 412, Texas Rules of Evidence,

must be found unconstitutional due to its clear.violation

of the accused’s Sixth Amendment right of confrontation.

e

CONCLUSION

For the aforementioned reasons, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

Opom AND LevIN

S. JoHN Opom

Counsel of Record

SBN: 15204000

2813 West T.C. Jester Boulevard

Houston, Texas 77018

713.685.5000 — Telephone

713.685.5020 — Facsimile

la

Affirmed and Opinion filed July 29, 1999.

[SEAL]

In The

Fourteenth Court of Appeals

NO. 14-96-01317-CR.

ROBERT PAUL McNASPY, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 228th District Court

Harris County, Texas :

Trial Court Cause No. 725203

OPINION

Appellant, Robert Paul McNaspy, was charged by

indictment with the felony offense of sexual assault. See

Tex. Pen. Cope ANN. § 22.011(a)(1)(A) (Vernon Supp.

1999). He was convicted and sentenced to ten years in the

Texas Department of Criminal Justice, Institutional Divi-

sion. Appellant challenges his conviction with four points

of error. We affirm.

Background

In 1991, appellant moved into his former wife’s

house, and the couple began operating a freight business

from their home. In March 1996, the complainant, appel-

lant’s former wife’s thirty-year-old daughter, began

working with the couple. The complainant testified

appellant began making inappropriate comments and

2a

sexual advances toward her during the course of her

employment. In June 1996, the complainant encountered

appellant sitting on the sofa and masturbating. She

attempted to ignore him and walk away, but appellant

pulled her over the sofa and pushed her down. Although

she fought with him and tried to escape, she testified that

appellant held her hands and penetrated her vagina with

his penis. Eventually, complainant was able to push

appellant away and flee to a neighbor’s house. Three

days later, complainant told her mother about the inci-

dent and then called the police. Appellant left the house

and was subsequently arrested.

Discussion

In his first point of error, appellant contends the trial

court erred in conducting its in camera hearing, held to

determine the admissibility of the complainant’s previous

sexual conduct, outside of his presence. Specifically,

appellant argues he was denied the right to confront the

complaining witness in violation of article 1, section 10 of

the Texas Constitution, the 6th and 14th amendments to

the U.S. Constitution, and article 33.03 of the Texas Code

of Criminal Procedure.

The right of an accused to be confronted with the

witnesses against him is a constitutional right. See Carroll

v. State, 916 S.W.2d 494, 496-97 (Tex. Crim. App. 1996).

However, it is well settled that even a constitutional right

may be waived if not properly preserved. See Serrano v.

State, 936 S.W.2d 387, 390 (Tex. App. - Houston [14th

Dist.] 1996, pet. ref’d); Cruse v. State, 882 S.W.2d 50, 52

3a

(Tex. App. - Houston [14th Dist.] 1994, no pet.). A defen-

dant waives his constitutional right to confront witnesses

if he does not make a timely and specific objection at trial

on the basis of violation of his right to confrontation. See

Tex. R. App. P. 33.1(a); Holland v. State, 802 S.W.2d 696, 700

(Tex. Crim. App. 1991); Tapia v. State, 933 S.W.2d 631, 633

(Tex. App. - Dallas 1996, pet. ref’d). In the present case,

the record does not reflect that appellant objected on any

grounds to his exclusion from the trial court’s in camera

hearing. For this reason, and without expressing any

opinion on the merits of appellant’s contention, we find

appellant waived any claim that his exclusion from the in

camera hearing violated his right to confrontation. See

Holland, 802 S.W.2d at 700 (concluding appellant’s failure

to timely raise express confrontation objection waived

any claim that admission of child’s out-of-court statement

violated his right to confrontation). Accordingly, we over-

rule appellant’s first point of error.

In his second point of error, appellant contends the

evidence presented during the guilt/innocence phase of

the trial was insufficient to support appellant’s conviction

for the felony offense of sexual assault.! Specifically,

appellant argues the State failed to prove lack of consent

based on physical force or violence beyond a reasonable

doubt.

1 Although appellant does not specify whether his point of

error addresses the legal or factual sufficiency of the evidence,

we assume it is the former because appellant directs this Court

to Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), which outlines

the standard applicable in a legal sufficiency review.

4a

When conducting a review of the legal sufficiency of

the evidence, we consider all the evidence presented at

trial to determine “whether, after viewing the evidence in

the light most favorable to the judgment, any rational

trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Turner v. State, 805

S.W.2d 423, 427 (Tex. Crim. App. 1991) (citing Jackson v.

Virginia, 443 U.S. 307, 318-19 (1979)). This standard

applies regardless of whether the conviction is based on

direct or circumstantial evidence. See Geesa v. State, 820

S.W.2d 154, 162-63 (Tex. Crim. App. 1991). In assessing

the legal sufficiency of the evidence, we are mindful that

we are not to “reevaluate the weight and credibility of the |

evidence, but act only to ensure that the jury reached a

rational decision.” Muniz v. State, 851 S.W.2d 238, 246

(Tex. Crim. App. 1993). Furthermore, the jury is the exclu-

sive judge of the credibility of witnesses and of the

weight given their testimony. See Mosley v. State, 983

S.W.2d 249, 254 (Tex. Crim. App. 1998), cert. denied, 119

S.Ct. 1466 (1999). Likewise, reconciliation of conflicts in

the evidence is within the exclusive control of the jury.

See id.

A person commits the offense of sexual assault if the

person intentionally or knowingly causes the penetration

of the anus or female sexual organ of another person by

any means, without the person’s consent. See Tex. Pen.

Cope ANN. § 22.011(a)(1)(A) (Vernon Supp. 1999). A sex-

ual assault is without the consent of the other person if

the actor compels the other person to submit or partici-

pate by the use of physical force or violence. See id.

§ 22.011(b)(1). In the present case, the record contains

conflicting testimony. However, the complainant testified

TM ee ee

5a

that appellant (1) grabbed the complainant from behind

and bruised her wrists; (2) pulled the complainant over

the sofa and pushed her down; (4) pressed his body

weight against her, pinning her knees to her chest and

prevented her from fleeing; anu (5) held the complain-

ant’s hands and penetrated her vagina with his penis.

After viewing the evidence in the light most favorable to

the verdict, we conclude the jury could have found the

essential elements of the offense of sexual assault beyond

a reasonable doubt. Thus, the evidence was legally suffi-

cient to support the verdict. We therefore overrule appel-

lant’s second point of error.

In his third point of error, appellant contends the trial

court erred in refusing to unseal the record of the in

camera hearing conducted pursuant to rule 412 of the

Texas Rules of Criminal Evidence. Specifically, appellant

argues the trial court’s failure to unseal the record for the

limited purpose of preparing an appellate brief violated

his due process rights.

Rule 412 is referred to as the “rape shield law.” See

Tex. R. Crim. Evip. 412;2 Wofford v. State, 903 S.W.2d 796,

798 (Tex. App. — Dallas 1995, pet. ref’d). Its purpose is to

protect a complainant’s previous sexual conduct from

exposure, except in limited circumstances. See Wofford,

2 We note that on March 1, 1998, the Texas Rules of

Criminal Evidence and the Texas Rules of Civil Evidence were

replaced by the Texas Rules of Evidence, which now apply to all

cases going to trial after March 1, 1998. However, because the

Texas Rules of Criminal Evidence were in effect when appellant

went to trial in 1996, all references to the rules are to the former

version.

6a

903 S.W.2d at 798. The in camera hearing required by rule

412(c) allows the trial court to determine privately

_whether to admit evidence of the complainant's past sex-

ual behavior and to limit any related questioning. See id.

In Kesterson v. State, 959 S.W.2d 247 (Tex. App. — Dallas

1997, no pet.), the appellant appealed the trial court’s

denial of his motion to allow counsel to review sealed

portions of the record. See id. at 247. As in the present

case, the appellant in Kesterson sought to have the record

of an in camera hearing conducted pursuant to rule 412(c)

unsealed for review in order to prepare his appellate

brief. See id. The Dallas Court of Appeals held that “an

appellant is not entitled to review the sealed record from

an in camera hearing conducted pursuant to rule 412 to

determine what complaints to raise on appeal.” Id. at 249.

The Kesterson court stated:

We are cognizant of the fact that without the

record of the in camera hearing, appellant will

be unable to make specific references in his brief

to the testimony from the hearing. Nevertheless,

this will not unduly hinder appellant in prepar-

ing any complaints he may have regarding the

testimony presented at the hearing. Appellant

can still identify what he believes was the gen-

eral nature of the testimony involved and dis-

cuss why he believes the trial court erred in its

ruling. Appellant can also identify the place in

the statement of facts where this Court will find

the trial court conducted the in camera hearing.

In short, appellant may brief any complaints he

has in light of the record available to him.

Id. at 248. We find this reasoning persuasive. After

reviewing the in camera testimony in light of the com-

plaints appellant raises on appeal, we conclude the trial

7a

court did not err in refusing to unseal the record. Conse-

quently, we overrule appellant’s third point of error.

In his fourth point of error, appellant contends he

was denied a fair trial due to ineffective assistance of -

counsel. Specifically, appellant argues his counsel was

ineffective because counsel failed to properly preserve

error in connection with the trial court’s order to exclude

evidence of complainant’s prior sexual conduct.

The standard of review for ineffective assistance of

counsel claims requires a two-step analysis. See Strickland

v. Washington, 466 U.S. 668 (1984); McFarland v. State, 928

S.W.2d 482, 500 (Tex. Crim. App. 1996); Moore v. State, 983

S.W.2d 15, 20 (Tex. App. —- Houston [14th Dist.] 1998, no

pet. h.). First, the appellant must demonstrate counsel’s

representation fell below an objective standard of rea-

sonableness under prevailing professional standards. See

Strickland, 466 U.S. at 688. Counsel’s competence is pre-

sumed, and the appellant must rebut this presumption by

identifying the acts or omissions alleged to constitute

ineffective assistance and affirmatively prove they fell

below the professional standard of reasonableness. See

McFarland, 928 S.W.2d at 500; Moore, 983 S.W.2d at 20. An

ineffectiveness claim cannot be demonstrated by isolating

any portion of counsel’s representation, but must be

judged on the totality of the representation. See Strickland,

466 U.S. at 695. Second, the appellant must establish that

counsel’s performance was so prejudicial that it deprived

appellant of a fair trial. See id. To satisfy this prong,

appellant must show that reasonable probability exists

that, but for counsel’s unprofessional errors, the fact-

finder would have reasonable doubt with respect to guilt.

See McFarland, 928 S.W.2d at 500; Moore, 983 S.W.2d at 20.

8a

Reasonable probability means a probability sufficient to

undermine confidence in the outcome, and appellant has

the burden of making this showing by a preponderance

of the evidence. See Strickland, 466 U.S. at 694.

Contrary to appellant’s assertions, the sealed record

of an in camera proceeding preserves any complaints

regarding the sealed testimony for appellate review. See

Kesterson, 959 S.W.2d at 248. In the present case, the

sealed record of the in camera hearing was forwarded to

this Court for appellate review. Thus, appellant's trial

counsel did not fail to preserve error regarding complain-

ant’s excluded testimony. Accordingly, we overrule

appellant’s fourth point of error.

We affirm the judgment of the trial court.

/s/ Paul C. Murphy

Chief Justice

Judgment rendered and Opinion filed July 29, 1999.

Panel consists of Chief Justice Murphy and Justices

Anderson and Hudson.

Do Not Publish — Tex. R. App. P. 47.3(b).

9a

CAUSE NO. 14-96-01317-CR

ROBERT PAUL § IN THE COURT

MCNASPY, § OF APPEALS

PETITIONER § op THE

VS. ; FOURTEENTH DISTRICT

side ghaiee ca SOF THE STATE OF TEXAS

TEXAS §

MOTION TO STAY EXECUTION OF MANDATE

TO THE HONORABLE JUSTICES OF THE FOUR-

TEENTH COURT OF APPEALS;

COMES NOW, ROBERT PAUL MCNASPY, PETI-

TIONER, in the above-entitled and numbered cause, and

move the Court to stay the issuance of its mandate of

affirmance in this cause, and in support thereof, would

respectfully present the following:

The Petitioner was tried and convicted in the 228th

Criminal District Court of Harris County, Texas of the

offense of sexual assault and punishment was assessed by

the jury at ten years confinement in the Texas Department

of Corrections. This conviction was confirmed by the

Court of Appeals for the Fourteenth District of Texas on

July 29, 1999. A Motion for Rehearing was overruled by

the Court of Appeals for the Fourteenth District of Texas

on October 21, 1999. A Petition for Discretionary Review

was overruled by the Court of Criminal Appeals for the

State of Texas on April 12, 2000. Copies of these opinions

are attached to this motion.

10a

The Petition for Discretionary Review to the Court of

Criminal Appeals for the State of Texas presented a sub-

stantial federal question: Is the constitutional right of a

Defendant to be present when witnesses against him are

being examined waived by his lawyers failure to timely

object?

The U.S. Supreme Court has held in various cases

that where the accused failed to make a timely objection

to a judge’s denial of the opportunity to be present at a

particular stage of the proceedings, such failure constitu-

ted a waiver of the accused’s right to contend subse-

quently that his right to be present had been violated.

However, these cases all deal with the right to be present

at phases of the trial other than during the examination of

witnesses and that is the issue in the instant case. The

only exception to the constitutional rule requiring the

Defendant to be present during examination of witnesses

is where the Defendant’s own disruptive actions prevent

the trial from being able to proceed. (Illinois v. Allen

(1970) 397 US 337, 25 Led 274 353, 90 S Ct. 1057).

Thus, in Snyder v. Massachusetts, (1934) 291 US 97, 78

L Ed 674, 54 S Ct. 330, 90 ALR 575 (overruled on other

grounds Malloy v. Hogan, 378 US 1, 12 L Ed 653, 84 S Ct.

1489, the court noted that so far as the Fourteenth

Amendment was concerned, the presence of a defendant

was a condition of due process to the extent that a fair

and just hearing would be thwarted by his absence, and

to that extent only; that it was necessary to determine

whether under the circumstances of a particular case the

enforced absence of the defendant was so flagrantly

ee ee

lla

absence; and that the Fourteenth Amendment did not say

in so many words that a defendant must be present every

second or minute or even every hour of the trial. While

recognizing that a defendant in a criminal case had the

right to be present at a trial when evidence was offered,

so that he would have the opportunity to advise with his

counsel and cross-examine the witnesses against him, the

court stated that confusion would result if the privilege of

presence were identified with the privilege of confrontation,

which was limited to the stages of the trial when there were

witnesses to be questioned. (Emphasis added).

unjust that the Federal Constitution forbade such |

A substantial constitutional question is presented in

the defendant’s Writ of Certiorari. The U.S. Supreme

Court should grant the writ in order to instruct the courts

of Texas that due process of law requires that a defendant

always be present during examination of witnesses,

defendants own disruptive behavior preventing a trial

going forward, being the only exception. This Sixth |

Amendment constitutional right is carried to the states

via the Fourteenth Amendment. Failure of his attorney to

object is not an exception to the right of confrontation -

and Texas law to the contrary should be reviewed by the

U.S. Supreme Court. The Supreme Court has emphasized

that the accused’s right to be present at his trial cannot

properly be based upon the confrontation clause of the

Sixth Amendment except to the extent that such right is

asserted in connection with a stage of the trial at which

there are witnesses to be questioned.

Good cause exists to request that this court stay the

issue of the mandate pending the hearing of the applica-

tion for a Writ of Certiorari in the U.S. Supreme Court.

12a

Attached hereto is the report from Dr. Allen L. Cos, Jr.,

M.D., of 2400 Hospital Drive, Bossier City, Louisiana,

stating that facts concerning the movant’s medical condi-

tion. As can be seen therein, Mr. McNaspy was recently

diagnosed with Hepatitis C. At this time he has been

referred to Dr. Douglas Rimmer to be followed up on

June 5, 2000 to determine treatment. Preventing this early

work up of what treatment and medications are required

could have serious, possible fatal, consequences.

Although treatment is available in the county jail, where

Mr. McNaspy would await the results of the writ applica-

tion, they are unable to perform the critical early diag-

nosis and prescription of medications as well as the

institutions with whom Mr. McNaspy is current treating.

For further good cause, if any be needed, Mr. McNaspy

lives with his friends, Mr. and Mrs. Donald S. Wille, sixty-

eight and seventy years old respectively, and their men-

tally disabled son, Donny. His financial assistance as well

as physical assistance will both be terminated if this stay

is not granted causing great hardship to these third par-

ties. Mrs. Wille has had seven bypass surgeries and needs

daily assistance that her husband, a disabled veteran,

cannot give.

The Petitioner intends to diligently and timely peti-

tion the United States Supreme Court to review this sub-

stantial federal question.

13a

IV.

If the Court does not issue an order staying the

execution of the mandate in this cause, the Petitioner will

suffer the execution of this sentence without having had

the opportunity to submit the substantial federal question

detailed above to the Supreme Court for review.

WHEREFORE, the Petitioner prays that the Court

stay the issuance of the mandate in this cause for a period

of ninety (90) days to permit the Petitioner an oppor-

tunity to timely file a Petition for Writ of Certiorari to the

United States Supreme Court. !

Respectfully submitted,

ODOM & LEVIN

/s/ S. John Odom

-§. JOHN ODOM

SBN: 15204000

2313 West T.C. Jester Boulevard

Houston, Texas 77018

(713) 685-5000 — Telephone

(713) 685-5020 — Facsimile

ATTORNEY FOR PETITIONER

CERTIFICATION OF SERVICE

I hereby certify that a true and correct copy of the

foregoing was sent by certified mail, return receipt

requested to all interested parties on this the 4th day of

May, 2000.

/s/ S. John Odom

Ss. [OHN ODOM

l4a

CAUSE NO, 14-96-01317-CR

ROBERT PAUL § IN THE COURT

MCNASPY, § OF APPEALS

PETITIONER § for THE

VS. ; FOURTEENTH DISTRICT

run STATE OF g OF THE STATE OF TEXAS

TEXAS §

ORDER

ON THIS DAY, came to be considered Petitioner’s

Motion to Stay Execution of the Mandate, and it appears

to the Court that this motion should be GRANTED/

DENIED.

IT IS THEREFORE, ORDERED that the mandate in

the above-entitled and numbered cause be stayed for a

period of sixty (60) days and not issue until P

2000.

/s/

JUDGE PRESIDING

15a

OFFICIAL NOTICE FROM COURT OF

CRIMINAL APPEALS OF TEXAS

P.O. BOX 12308, CAPITOL STATION,

AUSTIN, TEXAS 78711

April 12, 2000 DUPLICATE ORIGINAL

COA#: 14-96-01317-CR

RE: Case No. 0005-00

STYLE: MCNASPY, ROBERT PAUL

On this day, the Appellant’s Petition for Discretion-

ary Review has been REFUSED.

16a

Texas Rules of Evidence

Rule 412. Evidence of Previous Sexual Conduct In

Criminal Cases

(a) Reputation or Opinion Evidence. In a prosecu-

tion for sexual assault or aggravated sexual assault, or

attempt to commit sexual assault or aggravated sexual

assault, reputation or opinion evidence of the past sexual

behavior of an alleged victim of such crime is not admis-

sible.

(b) Evidence of Specific Instances. In a prosecution

for sexual assault or aggravated sexual assault, or

attempt to commit sexual assault or aggravated sexual

assault, evidence of specific instances of an alleged vic-

tim’s past sexual behavior is also not admissible, unless:

(1) such evidence is admitted in accordance

with paragraphs (c) and (d) of this rule;

(2) it is evidence:

(A) that is necessary to rebut or explain

scientific or medical evidence offered by the State;

(B) of past sexual behavior with the

accused and is offered by the accused upon the issue of

whether the alleged victim consented to the sexual

behavior which is the basis of the offense charged;

(C) that relates to the motive or bias of the

alleged victim;

(D) is admissible under Rule 609; or

(E) that is constitutionally required to be

admitted; and

17a

(3) its probative value outweighs the danger of

unfair prejudice.

(c) Procedure for Offering Evidence. If the defen-

dant proposes to introduce any documentary evidence or

to ask any question, either by direct examination or cross-

examination of any witness, concerning specific instances

of the alleged victim’s past sexual behavior, the defen-

dant must inform the court out of the hearing of the jury

prior to introducing any such evidence or asking any

such question. After this notice, the court shall conduct

an in camera hearing, recorded by the court reporter, to

determine whether the proposed evidence is admissible

under paragraph (b) of this rule. The court shall deter-

mine what evidence is admissible and shall accordingly

limit the questioning. The defendant shall not go outside

these limits or refer to any evidence ruled inadmissible in

camera without prior approval of the court without the

presence of the jury.

(d) Record Sealed. The court shall seal the record of

the in camera hearing required in paragraph (c) of this

rule for delivery to the appellate court in the event of an

appeal.

(e) Sexual Conduct of Child as Defense. This rule

does not limit the right of the accused to produce evi-

dence of promiscuous sexual conduct of a child 14 years

old or older as a defense to sexual assault, aggravated

sexual assault, indecency with a child or an attempt to

commit any of the foregoing crimes if such evidence is

admitted, the court shall instruct the jury as to the pur-

pose of the evidence and as to its limited use.

18a

Federal Rules of Evidence

RULE 412. SEX OFFENSE CASES; RELEVANCE OF

ALLEGED VICTIM’S PAST SEXUAL

BEHAVIOR OR ALLEGED SEXUAL PRE-

DISPOSITION

(a) Evidence Generally Inadmissible. The follow-

ing evidence is not admissible in any civil or criminal

proceeding involving alleged sexual misconduct except

as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged

victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged, vic-

tim’s sexual predisposition.

(b) Exceptions.

(1) Ina criminal case, the following evidence is

admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual

behavior by the alleged. victim offered to prove that a

person other than the accused was the source of semen,

injury or other physical evidence;

(B) evidence of specific instances of sexual

behavior by the alleged victim with respect to the person

accused of the sexual misconduct offered by the accused

to prove consent or by the prosecution; and

(C) evidence the exclusion of which would

violate the constitutional rights of the defendant.

(2) In a civil case, evidence offered to prove the

sexual behavior or sexual predisposition of any alleged

19a

victim is admissible if it is otherwise admissible under

these rules and its probative value substantially out-

weighs the danger of harm to any victim and of unfair

prejudice to any party. Evidence of an alleged victim's

reputation is admissible only if it has been placed in

controversy by the alleged victim.

(c) Procedure to Determine Admissibility.

(1) A party intending to offer evidence under

subdivision (b) must - ;

(A) file a written motion at least 14 days

before trial specifically describing the evidence and stat-

ing the purpose for which it is offered unless the court,

for good cause, requires a different time for filing or

permits filing during trial; and

(B) serve the motion on all parties and

notify the alleged victim or, when appropriate, the

alleged victim’s guardian or representative.

(2) Before admitting evidence under this rule

the court must conduct a hearing in camera and afford

the victim and parties a right to attend and be heard. The

motion, related papers, and the record of the hearing

must be sealed and remain under seal unless the court

orders otherwise.

20a

U.S. Const.

AMENDMENT VI - JURY TRIAL FOR CRIME,

AND PROCEDURAL RIGHTS

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assis-

tance of Counsel for his defence.