By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Evidence of past sexual experience not
admissible to show that the complainant in a sexual assault case was not
retarded (99-4-15)
On October 5, 1999, the Dallas Court of Appeals held that evidence of past
sexual experience and statements about sex by a complainant were inadmissible to
show that she was not retarded as alleged in the petition for sexual assault.
99-4-15. In the Matter of B.J.M., UNPUBLISHED, No. 05-98-00841-CV, 1999 WL
788576, 1999 Tex.App.Lexis ___ (Tex.App.—Dallas 10/5/99)[Texas Juvenile Law
172 (4th Edition 1996)].
Facts: The trial court adjudicated B.J.M. to be a child engaged in delinquent
conduct and assessed a ten-year determinate sentence.
In three points of error, appellant contends that (1) the evidence is legally
and factually insufficient to support his adjudication and (2) the trial court
erred by refusing to admit evidence of previous sexual conduct by the
complainant.
A.P. lived in an apartment upstairs from appellant. One afternoon, A.P., her
younger sister, L.P., and a friend went to appellant's apartment to play video
games with appellant's younger brother. Appellant asked A.P. and her friend to
come into the living room and talk. After a short time, the friend left, leaving
appellant and A.P. alone in the living room. The other children were in the
bedroom playing video games. According to A.P., appellant asked her if she had
ever seen a "private part." A.P. used dolls to demonstrate what
happened next. A.P. pulled the male doll's shorts down and pulled the female
doll's panties to the side. A.P. then testified that appellant put his private
part into hers. Afterwards, A.P. got her little sister and went home. Although
A.P. was "scared," she did not tell her mother what had happened. The
next day, A.P.'s older brother told his mother that something "bad"
happened to A.P. the day before. After her mother spoke with A.P., her mother
called the police and went with A.P. to Parkland for an examination.
The State later filed a petition alleging appellant had engaged in delinquent
conduct by committing the offense of sexual assault. After hearing the evidence
and argument of counsel, the trial court determined that appellant sexually
assaulted A.P., a person who he knew was incapable of either appraising the
nature of the act or of resisting it as a result of mental disease or defect.
Following a disposition hearing, the trial court committed appellant to the
Texas Youth Commission for ten years, with possible transfer at age eighteen to
the Texas Department of Criminal Justice. This appeal followed.
Held: Affirmed.
Opinion Text: In his first two points of error, appellant contends that the
evidence is legally and factually insufficient to support his adjudication as a
child engaged in delinquent conduct. Specifically, appellant contends the State
failed to establish that appellant knew that as a result of mental disease or
defect, A.P. was incapable of either appraising the nature of the act or
resisting it. See Tex.Pen. Code Ann. § 22.011(b)(4) (Vernon Supp.1999).
Adjudications of delinquency in juvenile cases are based on the criminal
standard of proof. See Tex.Fam. Code Ann. § 54.03(f) (Vernon 1996); In re L.M.,
993 S.W.2d 276, 284 (Tex.App.--Austin, pet. filed ). Therefore, we review
adjudications of delinquency in juvenile cases by applying the standards
applicable to challenges to the sufficiency of the evidence in criminal cases.
In re L.M., 993 S.W.2d at 284; see also C.D.F. v. State, 852 S.W.2d 281, 284 (Tex.App--Dallas
1993, no writ) (applying Jackson v. Virginia standard to review legal
sufficiency of the evidence to support adjudication of delinquency). When
reviewing a challenge to the legal sufficiency of the evidence, we view the
evidence in the light most favorable to the verdict. Turner v. State, 805 S.W.2d
423, 427 (Tex.Crim.App.1991). We determine whether any rational trier of fact
could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560
(1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988). The fact
finder is the sole judge of the credibility of the witnesses and the weight
given their testimony. See Bonham v. State, 680 S.W.2d 815, 819
(Tex.Crim.App.1984). Thus, the fact finder is free to accept or reject any or
all of a witness' testimony, Saxton v. State, 804 S.W.2d 910, 914
(Tex.Crim.App.1991), and is entitled to draw reasonable inferences from basic to
ultimate facts. See Jackson v. State, 672 S.W.2d 801, 804 (Tex.Crim.App.1982).
The fact finder may also use common sense and apply common knowledge,
observation, and experience gained from the ordinary affairs of life when giving
effect to the inferences that may be reasonably drawn from the evidence. See
Kelley v. State, 968 S.W.2d 395, 398 (Tex.App.--Tyler 1998, no pet.); Wawrykow
v. State, 866 S.W.2d 87, 88-80 (Tex.App.--Beaumont 1993, pet. ref'd).
When we review challenges to the factual sufficiency of the evidence, we view
all of the evidence without the prism of "in the light most favorable to
the prosecution." Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App.1996).
In conducting this review, we must be appropriately deferential to the fact
finder's determination. Id. at 133. We may not "find" facts or
substitute our judgment for that of the fact finder. Id. We review the fact
finder's weighing of the evidence and are authorized to disagree with the fact
finder's determination. Id. However, it is not enough that we believe a
different result is more reasonable. Id. at 135. The purpose of our review is
only to prevent a manifestly unjust result. Clewis, 922 S.W.2d at 135. In
assessing factual sufficiency, we do not decide the existence or nonexistence of
a vital fact, we do not decide the truth or falsity of proffered evidence, nor
do we judge the credibility of witnesses. See Scott v. State, 934 S.W.2d 396,
399 (Tex.App.--Dallas 1996, no pet.). We will set aside the verdict only if it
is so contrary to the overwhelming weight of the evidence that it is clearly
wrong and unjust. Id.
To support the adjudication of delinquency, the State must show appellant
intentionally or knowingly caused the penetration of A.P.'s sexual organ and
that appellant knew that, as result of mental disease or defect, A.P. was at the
time of the sexual assault incapable either of appraising the nature of the act
or of resisting it. See Tex.Pen. Code Ann. § 22.011 (Vernon 1994).
Appellant does not challenge the trial court's determination that he had sexual
intercourse with A.P. Appellant's complaint is that the State failed to prove
(1) A.P. suffers from a mental defect that renders her incapable of appraising
the act or of resisting it and (2) appellant knew about A.P.'s mental condition.
Viewing the evidence in the light most favorable to the judgment the record
shows that A.P. is mentally retarded. Although she was thirteen-years-old at the
time of the incident, she functioned at about a six- or seven-year-old level. A
handicapped bus picks up A.P. and takes her to school. At school, A.P. is in
special classes and has been since first or second grade. According to A.P.'s
mother, she has discussed A.P.'s condition with her neighbors. She also
testified that A.P. and her other children played with appellant's younger
brother and that appellant "was around" when all of the children were
playing. A.P.'s brother testified that A.P.'s mental condition is
"obvious." According to A.P.'s brother, most of the children in the
apartment complex seem to understand that something is wrong with A.P. Susan
Bitney, an Irving police officer, testified that she spoke with A.P. about the
incident. Bitney realized A.P. was retarded after only a short time because it
was "obvious." According to A.P., appellant invited her and her friend
into the living room to "talk." After a short time, the friend left
leaving A.P. alone with appellant. Although A.P. acknowledged that she had heard
the word "sex" before, she did not know what it meant and did not know
if what appellant did to her was sex.
Based on the above evidence, we conclude that a rational trier of fact could
have concluded that A.P.'s mental retardation rendered her incapable of consent
and that appellant knew of A.P's mental condition. See Rider v. State, 735
S.W.2d 291, 292-93 (Tex.App.--Dallas 1987, no pet.) (complainant incapable of
appraising the nature of the act or of resisting it because although he had
attended sex education classes, complainant was mentally retarded, functioning
at a six-year-old level); Wootton v. State, 799 S.W.2d 499, 501-02 (Tex.App.--Corpus
Christi 1990, pet. ref'd) (complainants' I.Q.s were forty-five and fifty,
respectively, functioning at the level of six- or seven-year-olds and were,
thus, unable to appraise the nature of sexual assault or to resist it). Thus, we
conclude the evidence is legally sufficient to support appellant's adjudication
as a delinquent child. We overrule point of error one.
Viewing all of the evidence equally, we likewise conclude that the evidence is
factually sufficient to support appellant's adjudication. Although appellant's
brother testified that appellant had not spent "a lot of time" with
A.P., nonetheless, he admitted that prior to the sexual assault, appellant and
A.P. had been in the bedroom at appellant's apartment with several children
while they played video games and watched "a play." Appellant also
spoke with A.P. in the living room for a period of time prior to the assault.
Further, A.P.'s mother testified that appellant "was around" when A.P.
played with appellant's brother. Combined with testimony from other witnesses
that it took only a short period of time before A.P's mental condition became
obvious, we cannot conclude that the trial court's determination that appellant
knew of A.P's mental condition is so contrary to the overwhelming weight of the
evidence that it is clearly wrong and unjust. Thus, we conclude the evidence is
factually sufficient to support appellant's adjudication as a delinquent child.
We overrule point of error two.
In his third point of error, appellant contends the trial court erred by
excluding testimony regarding A.P.'s previous sexual conduct to refute the
State's evidence on the issue of her incapacity to understand the nature of the
sex act. In particular, appellant argues that the trial court should have
allowed appellant's brother and friend, A.M. and J.C., to testify that A.P. told
them that she had given a man in a van a "blow job." Although
appellant makes several arguments regarding the complained-of testimony's
admissibility, at trial appellant argued only that the evidence was admissible
to show that A.P. did understand the nature of the act. Thus, we confine our
discussion to that argument. Under the Texas Family Code, the evidentiary
aspects of a juvenile trial are governed by criminal rules of evidence. See
Tex.Fam. Code Ann. § 51.17(c) (Vernon 1996); In re M.A.F., 966 S.W.2d 448, 450
(Tex.1998). We will not reverse a trial court's decision to admit or to exclude
evidence absent a clear abuse of discretion. See Montgomery v. State, 810 S.W.2d
372, 391 (Tex.Crim.App.1990) (op. on reh'g); In re M.D., 974 S.W.2d 332, 349 (Tex.App.--San
Antonio 1998, no writ). As long as the trial court's ruling is "within the
zone of reasonable disagreement," this Court will not intercede.
Montogomery, 810 S.W.2d at 391.
With that standard in mind, we turn to appellant's argument that the evidence
was admissible to show that A.P. understood the nature of the act. When
appellant attempted to introduce the complained-of testimony, the State objected
arguing that A.P. "was under 14 when this happened. And anything that has
anything to do with any prior sexual experience is not admissible in this Court
and this situation." See Tex.R.Evid. 412(a), (e). [FN2] After a lengthy
discussion, the trial court allowed appellant to examine the witnesses regarding
specific conversations with A.P. but disallowed any testimony that "hinge[d]
on some prior sexual conduct of hers, or issues that could border on being
promiscu[ous]." The trial court reasoned that "if she's, in fact, a
person of mental retardation, and she may have had some other experience or
encounter, it can still be a situation that could have arisen but never would
have occurred but for issues about mental retardation." We agree. The trial
court's decision to exclude evidence of a previous sexual encounter by A.P.
because it was not necessarily probative of whether she understood "the
nature of the act" is not outside the "zone of reasonable isagreement."
Thus, we cannot conclude that it was an abuse of discretion for the trial court
to do so. We overrule point of error three.
FN2. Rule of Evidence 412(b) provides, in relevant part, that:
(b) 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 victim's past sexual behavior is ... not admissible,
unless:
* * *
(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
(3) its probative value outweighs the danger of unfair prejudice.