By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Not a confrontation right denial to refuse
to permit defendant to cross regarding juvenile record (00-3-21)
On July 18, 2000, the Dallas Court of Appeals held that it was not a denial
of a criminal defendant's right to confrontation to refuse to permit him to
cross-examine the complaining witness in a sexual assault of a child case about
the witness' juvenile record.
00-3-21. Ingram v. State, UNPUBLISHED, No. 05-99-00442-CR, 2000 WL 979719, 2000
Tex.App.Lexis ____ (Tex.App.--Dallas 7/18/00) [Texas Juvenile Law ... (4th Ed.
1996)]
Facts: Appellant appeals his conviction for sexual assault of a child. After the
jury found appellant guilty, it assessed punishment at twenty years'
confinement. In three points of error, appellant contends: (1) the jury engaged
in misconduct, (2) his right to be present during trial was violated, and (3) he
was denied his right to impeach the complaining witness.
The Dallas County grand jury indicted appellant, the elected constable of
Palestine, Texas, for sexual assault of a child. At trial, the State showed that
in May 1996, an acquaintance introduced appellant to A.B., a fourteen year old
runaway from Flower Mound, Texas. After taking the child to his home in
Palestine, he decided to take her to the police station. Appellant called the
child's mother and told her that the child was in Palestine. A.B.'s mother asked
appellant if the child could stay in Palestine overnight as the weather was bad.
According to A.B.'s mother, appellant told her Palestine did not have a juvenile
facility and she could not stay overnight. Contrary to appellant's
representation, Palestine did have a juvenile facility where A.B. could have
stayed for the night. Because of appellant's representation, A.B.'s mother
agreed to allow appellant drive A.B. home. Appellant left Palestine just after 9
p.m. and was in Corsicana by 10:18 p.m., as shown on a convenience store receipt
he later submitted for reimbursement. Corsicana is about a one hour drive from
Flower Mound. Appellant, however, did not arrive in Flower Mound until close to
1:00 a.m. A.B. testified that somewhere between Corsicana and Flower Mound,
appellant took her to a motel and had sexual intercourse with her. Appellant
admitted stopping at a motel on the way to Flower Mound, but claimed he did so
only because he wanted to spend the night in Dallas and was afraid the motel
might be booked if he waited until after he took the child home.
Over a month after the offense, the child told her stepfather about the sexual
assault. The child's stepfather told the child's mother, who in turn reported
the assault to the police. The police began an investigation, but were forced to
put it on hold when A.B. was unable to locate the motel where the offense
occurred. The Palestine authorities were informed of the allegations and later
located a receipt showing appellant had been in a motel on the night in
question. They turned the evidence over to Dallas County. Dallas police officers
took the child to the motel and she verified that it was the location where the
assault occurred. After hearing the evidence, the jury found appellant guilty of
sexual assault. Following a punishment hearing, the jury assessed punishment at
twenty years' confinement. This appeal followed.
Held: Affirmed.
Opinion Text: In his third point of error, appellant asserts he was denied his
right to impeach the victim with her prior juvenile record in violation of Davis
v. Alaska, 415 U.S. 308 (1974). Under rule 609 of the rules of evidence,
evidence of juvenile adjudications are not admissible unless the constitution
requires its admission. See Tex.R. Evid. 609(d). The confrontation clause of the
United States Constitution, however, gives the defendant the right to cross-
examine a witness with juvenile records if the cross-examination is reasonably
calculated to expose a motive, bias, or interest for the witness to testify. See
Davis, 415 U.S. at 316; see also Hoyos v. State, 982 S.W.2d 419, 421
(Tex.Crim.App.1998); Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App.1996).
For example, evidence that a witness with a juvenile record might have been
testifying due to pressure from the State and to shift suspicion away from
himself is relevant to show bias and thus is admissible under the confrontation
clause. See Davis, 415 U.S. at 318. However, the mere fact that a witness might
be on probation or have some otherwise "vulnerable relationship" with
the State is not alone sufficient to establish admissibility. See Carpenter v.
State, 979 S.W.2d 633, 635 (Tex.Crim.App.1998). Rather, there must be some
causal connection or logical relationship between the witness's "vulnerable
relationship" and his testimony at trial. Id. Evidence of a juvenile's
record is not admissible as general impeachment evidence. See Warren v. State,
514 S.W.2d 458, 465 (Tex, Crim.App.1974), overruled on other grounds, 737 S.W.2d
315, 323.
In the case before us, appellant requested permission to review the victim's
juvenile record and impeach her with the prior record. The trial court denied
appellant's request noting that its review of the sealed records showed that,
although the victim had some theft allegations, there did not appear to be any
disposition with regard to those complaints. The prosecutor concurred with the
trial court's reading of the records. On appeal, appellant asserts that if the
records show the victim was on parole, probation, or had pending charges against
her, he was denied his constitutional right to confront the witnesses against
him. The State responds the record shows the child was never placed on probation
or adjudicated for any criminal offense. Thus, it asserts her testimony could
not have been motivated by a fear of retaliation by the State. The State's
interpretation of the record is based upon the trial court's and prosecutor's
remarks after reviewing the juvenile's records.
The sealed records are before this Court. The records are voluminous and
confusing. However, our review of those records shows that, contrary to the
trial court's and the prosecutor's understanding, the victim was adjudicated a
child engaged in delinquent conduct based upon commission of the theft offense.
That does not, however, end our inquiry. Rather, we must determine whether the
victim's "vulnerable relationship" with the State was relevant to show
possible bias or prejudice under the circumstances of this case. See Carpenter,
979 S.W.2d at 635. After reviewing the record, we conclude it was not.
The instant investigation began with the child's outcry of sexual assault.
Therefore, there is no possibility her allegations were the product of
prosecutorial pressure. Furthermore, appellant's theory of relevance is that
authorities in the City of Palestine and Anderson County were persecuting him.
However, the prosecution against appellant was brought by Dallas County and the
child was adjudicated in Denton County. We conclude a careful review of the
record shows no causal connection between the child's juvenile record and the
allegations against appellant. Thus, the child's record was not relevant to show
bias. See Carpenter, 979 S.W.2d at 634.
Assuming, arguendo, the trial court erred in refusing to allow appellant to
impeach the victim, we conclude the error was harmless beyond a reasonable
doubt. See Delaware v. Van Arsdall, 475 U.S.673, 684 (1986); Tex.R.App. P.
44.2(a). The harm analysis for a confrontation clause violation is a three-
prong process. Young v. State, 891 S.W.2d 945, 948 (Tex.Crim.App.1994). First,
we assume the damaging potential of the cross-examination was fully realized.
Shelby v. State, 819 S.W.2d 544, 547 (Tex.Crim.App.1991). Second, with that
assumption in mind, the record is reviewed in light of the following factors:
(1) the importance of the witness's testimony in the prosecution's case, (2)
whether the testimony was cumulative, (3) the presence or absence of
corroborating evidence, (4) the extent of cross-examination otherwise permitted,
and (5) the overall strength of the prosecution's case. See Id. Finally, in
light of the first two prongs, we determine whether the error was harmless
beyond a reasonable doubt. Id. To perform this analysis, we review the entire
record. Alexander v. State, 949 S.W.2d 772, 775 (Tex.App.-Dallas 1997, pet.
ref'd).
Applying the above analysis to the instant case, we first assume the jury was
informed the victim was adjudicated a child engaged in delinquent conduct for
the theft offense. The alleged "damaging potential" for this evidence
was that the State may have put pressure upon the child to testify falsely
against appellant. However, as noted above, the investigation originated with
the witness, who was the victim of the offense, not by State initiated
questioning. Additionally, the child's adjudication was from a different county
than the county of prosecution. Furthermore, the jury was aware that at the time
of the offense, the victim was on probation for running away, admitted using
marijuana in violation of her probation, and that her problems with law
enforcement escalated after the assault. Thus, under the first prong of the harm
analysis, our review shows the excluded evidence had little potential for
damage. Although the factors to consider in the second prong of the harm
analysis favor appellant, (i.e. the child's testimony was crucial, was not
cumulative, was largely uncorroborated), we view those factors in light of the
first prong. Because the impeachment evidence was of negligible value, we
conclude its exclusion was harmless beyond a reasonable doubt. We overrule the
third point of error. We affirm the trial court's judgment.