Billodeau v. State

• Decision Date: 11 February 2009
• Docket Number: No. PD-0969-07.,PD-0969-07.
• Citation: 277 S.W.3d 34
• Parties: David Clyde BILLODEAU, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

277 S.W.3d 34

David Clyde BILLODEAU, Appellant v. The STATE of Texas.

No. PD-0969-07.

Court of Criminal Appeals of Texas.

February 11, 2009.

Kim A. Parks, Houston, & Brian W. Wice, of counsel, Houston, for Appellant.

Shirley Cornelius, Assistant District Atty., Houston, Jeffrey L. Van Horn, State's Atty., Austin, for State.

OPINION

JOHNSON, J., delivered the opinion for a unanimous Court.

This Court granted appellant's petition for discretionary review to decide a single issue:

When a defendant is accused of aggravated sexual assault, and the only evidence in the case consists of the testimony of the complainant and the testimony of the accused, should the trial court prevent the defense from presenting evidence about threats and false, similar allegations made by the complainant after the date of the charged offense, but before the date of the complainant's testimony at trial?

Appellant's argument to this Court is that he was prevented from questioning the complainant, J.B., about threats he made to neighbors when they angered him, that he would falsely accuse them of molesting him. Outside the presence of the jury, appellant questioned J.B. about the threats, and J.B. denied making them. The trial court ruled that appellant could not present that evidence to the jury because the alleged threats had been made after the charged offense. Because appellant was not permitted to ask those questions in front of the jury and get J.B.'s denials before it, he was therefore not permitted to present his defense, which was contained in the testimony of those neighbors, the Klines, that the threats denied by J.B. were, in fact, made. We reverse.

The record reflects that appellant moved to Texas in late 2002. Shortly after arriving, he moved into the Baytown home of Robert and Edith Wolfe. The Wolfes introduced appellant to the Basses, the complainant's family. In May 2003, appellant was injured in a bicycle accident and stayed in the hospital overnight. When appellant was released from the hospital, the Basses invited him to stay in their home while he recuperated. During this time, appellant spent a lot of time with the then-eight-year-old complainant, J.B. Appellant later moved into his own apartment in Channelview and then to Louisiana.¹ At some point, appellant bought J.B. two remote-control cars as a gift.² J.B.'s mother disapproved and insisted that appellant reclaim the cars and take them to the Wolfes' home. When appellant attempted to take them back, J.B. went into rage threw the cars at appellant, hitting him in the back, and swore at him.³

In late July 2003, J.B. visited the home of his neighbor, Marilyn Jordan, to play with her young son. During the visit, Ms. Jordan asked J.B. if appellant still lived with his family,⁴ but J.B.'s reaction to her question was "odd." Ms. Jordan testified that "he hung his head down and started crying." She asked him what was wrong, but he remained silent. She pressed him, and he told her that appellant had taken him to a motel and had made J.B. touch his "thing," and that appellant had stuck his "thing" into J.B.'s anus. J.B. asserted that he had told only Ms. Jordan of the incident. She instructed J.B. to go home immediately and to tell his parents. J.B., however, stated that he did not want to inform his parents of the incident because he was afraid of being taken away from them.⁵ Afraid that J.B. would not tell his parents, Ms. Jordan called the sheriff that evening. After the deputies had come and gone, Mr. and Mrs. Bass went to Ms. Jordan's home, upset that she had reported J.B.'s accusation to the Sheriff's Office.⁶

About an hour after Mr. Bass arrived home from work that evening, he noticed a deputy sheriff at Ms. Jordan's home. J.B. was riding his bicycle close by, and Mr. Bass beckoned to him. He said that he figured that the police visit involved J.B., so he asked J.B. why the deputy was at Ms. Jordan's house. J.B. teared up and, after several minutes of probing by his father, told him about the alleged offense. The deputy later came to speak to Mr. Bass about the incident. That evening, Mrs. Bass took J.B. to Texas Children's Hospital. Dr. Erin Endom, the examining doctor, testified that there were no signs of trauma, but that it is very common for a child sexual-assault victim not to have any physical injuries because many child victims were too small to resist force, and resistance is what produces physical damage. The next day, Child Protective Services (CPS) removed J.B. and his sister from the Basses' home due to the alleged charges. They remained in state custody for approximately 11 months.

At trial, Mr. Bass testified that J.B. had been diagnosed at the age of seven with both attention-deficit disorder and bipolar disorder, which contributed to his fits of rage,⁷ and that, after returning home from CPS custody, J.B.'s behavior worsened, and he displayed intense anger towards some adults.⁸ Mr. Bass also testified that J.B. liked appellant and that he allowed J.B. to spend a lot of time with appellant. After appellant moved out, Mr. Bass allowed J.B. to visit appellant at his Channelview apartment almost every weekend. J.B. was with appellant on the weekend that the alleged offense took place. Mr. Bass said that he did not know where J.B. and appellant were, but that he had spoken with J.B. on appellant's cell phone during that weekend. J.B. "sounded fine," but did not say where they were. Mr. Bass confirmed that appellant did not own a car at that time.

J.B., ten years old at the time of trial, testified both that his dad dropped him and appellant off at the Palms Motel in Baytown⁹ and that appellant took him there.¹⁰ He also testified both that appellant did not have a car at that time and that, later that evening, appellant drove them in his car to get food, but that they came back to the motel to eat.¹¹

J.B. testified that, before he fell asleep in the afternoon, appellant began to French-kiss him and that, while he was sleeping on his stomach, appellant apparently pulled down J.B.'s shorts and climbed on top of him. J.B. stated that he awoke when appellant put his "tally whacker" into J.B.'s anus. He further stated that he eventually pushed appellant off, ran into the bathroom to dress, and then ran to the front office, but it was closed, so he went back to the room. He testified that appellant was fully dressed when J.B. returned and that appellant threatened to kill him if he told anyone about the incident. According to J.B.'s testimony, no other sexual activity occurred that evening, his father picked him up early the next morning at the motel, and appellant remained at the motel.

Defense counsel made repeated attempts to question J.B. about the threats against the Klines, but each time the state objected that such inquiry was not relevant, and the trial court sustained each objection. Outside the presence of the jury, defense counsel questioned J.B. about threatening to make false accusations of molestation against the Klines, and J.B. denied both incidents. J.B. admitted to making one accusation—that appellant had molested Matthew Kline—but maintained that the accusation was true. The trial court refused to allow appellant to question J.B. about the alleged threats against the Klines in front of the jury, implicitly ruling that, because J.B. made the threats after the date on which the offense on trial was alleged to have occurred, testimony about them was not admissible.

Appellant testified and contradicted J.B.'s testimony. He denied that he had ever taken J.B. to a motel and stated that J.B.'s assertion that appellant drove them to McDonald's to get food while staying at a motel was false because he did not have a car at the time. Appellant stated that he used the settlement funds from the bicycle accident to move back to Louisiana, driving with a relative in the relative's car.

Nancy and Nathan Kline each testified that they were acquainted with J.B.'s reputation for truthfulness and that it was bad. Appellant sought to present their testimony that J.B. had become angry with each of them and had then threatened to accuse each of them of molesting him.¹² Appellant argued that he had a right to present the Klines' testimony under the Confrontation Clause and thus to impeach J.B.'s credibility. The trial judge refused to admit the Klines' testimony, but permitted counsel to make a bill of exceptions.

In that bill of exceptions, testimony showed that the Klines and the Basses were neighbors. J.B. sometimes played with Ms. Kline's younger children. One day about a year after J.B. accused appellant, J.B. and his sister visited Ms. Kline's two younger children. While J.B. was playing with her children, Ms. Kline heard J.B. call his sister a bad name. She immediately reprimanded him for his behavior. She testified that, on several occasions before that day, she had warned him that she was going to wash his mouth out with soap if he used bad language, so she grabbed her dish soap and put some in his mouth. According to Ms. Kline, J.B. became enraged and began to kick and scream. In an effort to calm him down, Ms. Kline grabbed his shoulders. She testified that J.B. said, "I am going to call the cops and tell them that you're molesting me." She told him, "Well, obviously you don't know what molested means." However, he gave her an accurate definition.¹³ Ms. Kline testified that J.B. had a smirk on his face when he threatened her and that when he left her house, he was angry, but still smirking.

In November 2004, a similar incident occurred between J.B. and Nathan Kline, Ms. Kline's 20-year-old son. Nancy Kline was present and also witnessed the incident. J.B. asked Nathan if his younger siblings could come out to play. Nathan told him that they were not home. Convinced that they were at home, J.B. became angry, called Nathan a liar, and told him that he was going to tell his parents that Nathan was molesting him. The state's only...