Dale v. State
| Decision Date | 18 April 2012 |
| Docket Number | No. 10-11-00381-CR,No. 10-11-00380-CR,10-11-00380-CR,10-11-00381-CR |
| Parties | WILLIAM GREGORY DALE, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
From the 77th District Court
Freestone County, Texas
MEMORANDUM OPINIONIn two separate cause numbers, appellant, William Gregory Dale, was convicted of aggravated sexual assault of a child (appellate cause number 10-11-00380-CR), a first-degree felony, and indecency with a child (appellate cause number 10-11-00381-CR), a second-degree felony.1 See TEX. PENAL CODE ANN. §§ 22.021(a)(1)(B)(i), (b)(1), (e),21.11(a)(1), (d) (West 2011 & Supp. 2011). By several issues in both appellate cause numbers, Dale challenges his convictions. We affirm as modified.
On Memorial Day weekend 2009, the victim in this case, fifteen-year-old M.B., traveled with her best friend, K.I., and K.I.'s family to the family lake house on Richland-Chambers Lake in Freestone County, Texas.2 M.B. had visited the lake house many times in the past, and K.I.'s family knew M.B. very well. During the weekend in question, M.B. and K.I., along with several other family members, participated in activities, such as tubing and riding four-wheel all-terrain vehicles. Dale was among the many members of K.I.'s family that visited the lake house that weekend. Dale visited the lake house frequently, and M.B. knew Dale very well.
The first incident allegedly transpired late on the Sunday night of the holiday weekend. Typically, the girls would sleep on air mattresses in a converted garage, which was on the first story of the three-story lake house. On Sunday night, M.B., K.I., and several other family members chose to watch a movie in the converted garage.3 According to several witnesses, everyone had been roasting marshmallows late into the night until they decided to watch a movie at around 2 or 3 o'clock in the morning. M.B.and K.I. were lying on an air mattress watching the movie. Dale was positioned in between M.B. and K.I. on the air mattress.4 K.I.'s mother and father were on nearby couches, K.I.'s grandfather was sitting on the stairs, and the boyfriend of K.I.'s cousin was also in the room. As Dale states in his brief, "[i]t was very late and the family began to fall asleep as they watched the movie."
M.B. testified that the sheets on the air mattress covered her and that the lights in the room were off. M.B. eventually fell asleep. However, she was awakened by someone touching her. M.B. stated that Dale was fingering her vagina and that he was rubbing her breasts. M.B. recalled that when this transpired, the movie was over and the room was "dark." According to M.B., Dale stopped when K.I.'s mother "told him to move" to his air mattress. M.B. denied that she had any disagreements with K.I.'s family or that she had any reason to make up these allegations. M.B. also testified that she did not say anything to Dale because she was scared to lose K.I.'s family and that she tried to act normal.
The next morning, K.I. and her mother remembered M.B. specifically requesting to ride the four-wheeler and asking Dale to join them. K.I.'s mother insisted that if the girls were driving the four-wheeler away from the house that an adult had to accompany them. K.I. testified that, before the girls went out that morning, they ate breakfast with Dale and other family members. K.I. noted that M.B. playfully pulledDale's leg hair with her toes. After eating breakfast, the girls and Dale drove the four-wheeler to see donkeys at a nearby house. M.B. drove the four-wheeler, and Dale was positioned in between M.B. and K.I. M.B. was wearing her swim suit, shorts, and a T-shirt. M.B. alleged that Dale touched her "inappropriately" while they were driving to see the donkeys. M.B. testified that Dale rubbed her private area and thighs with his hands while she was driving the four-wheeler and that this had happened before. However, M.B. denied that Dale touched her breasts while on the four-wheeler. M.B. asked Dale to switch places with her, but Dale insisted that she "just keep driving."
Initially, M.B. did not tell her grandparents, whom she was living with at the time, about the incidents, but she did tell a friend, E.R., about it.5 M.B. later told her school counselor, Mrs. Nissen, about the incidents. After making the allegations, K.I. stopped being friends with M.B. because K.I. believed the allegations to be false. In addition, word about the incidents soon "got around school." Due to the rumors at school, M.B. decided to transfer schools.
E.R. remembered that M.B. had told her about the incidents the day after they had happened. E.R. produced a written statement for police, which stated the following, in pertinent part:
[M.B.] texted me on Monday evening, May 25th, and told me that over the weekend, at the lake, something bad had happened to her. . . . And she had told me she had been touched and she told me that the guy was [K.I.'s] uncle's friend. She said the guy was on top of her, and she was tooscared to tell him to stop. She said she was also too scared to tell an adult. She said it happened at [K.I.'s] lake house."
E.R. later clarified that she made a mistake in her written statement. She noted that M.B. told her that Dale had committed the alleged acts, not Dale's friend.
Regarding the movie incident, K.I.'s mother testified that Dale was simply "goofing with the girls" while they were lying on the air mattress and that he told the girls to K.I.'s mother noted that she could see that the girls were under the covers but that Dale was not. K.I.'s mother denied seeing Dale touch M.B. inappropriately. Additionally, K.I. did not recall seeing Dale ever rub M.B.'s thighs or touching M.B.'s breasts. K.I. did note that M.B. acted normal the entire weekend, except for one comment where M.B. told K.I. that her father was going to buy her a lake house and a sports car—something K.I. found odd because M.B.'s father is in prison. K.I.'s father also testified that he did not see anything unusual occur that weekend, though he admitted that he started to fall asleep during the movie.
At the conclusion of the evidence, the jury convicted Dale in both cause numbers and assessed punishment at: (1) fifteen years' confinement with a $10,000 fine in appellate cause number 10-11-00380-CR; and (2) six years' confinement with a $10,000 fine in appellate cause number 10-11-00381-CR. The trial court ordered both sentences to run concurrently. This appeal followed.
II. THE TRIAL COURT'S EXCLUSION OF EVIDENCE FROM THE VICTIM'S MYSPACE
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In his second issue in appellate cause number 10-11-00380-CR and in his first issue in appellate cause number 10-11-00381-CR, Dale argues that the trial court erred inrefusing to admit an entry M.B. made on her MySpace page where she referred to herself as a "bitch/whore." In particular, Dale alleges that the admission of the statement would not have violated Texas Rule of Evidence 412 and that the trial court's refusal to admit the statement limited his cross-examination of M.B. See TEX. R. EVID. 412. We disagree.
We review a trial court's decision to exclude evidence under an abuse-of-discretion standard. Thomas v. State, 137 S.W.3d 792, 794 (Tex. App—Waco 2004, no pet.) (citing Mozon v. State, 991 S.W.2d 841, 846-47 (Tex. Crim. App. 1999)). An abuse of discretion occurred when a trial court's decision is so clearly wrong that it lies outside the "zone of reasonable disagreement." Id. ().
The Sixth Amendment protects the defendant's right not only to confront the witnesses against him, but to cross-examine them as well. See Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110, 39 L .Ed. 2d 347 (1974). "The exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination." Davis, 415 U.S. at 316-17, 94 S. Ct. at 1110. The accused is entitled to great latitude to show a witness' bias or motive to falsify his testimony. See Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App. [Panel Op.] 1982).
However, the right of cross-examination is not unlimited. The trial court retains wide latitude to impose reasonable limits on cross-examination. See Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S. Ct. 1431, 1434-35, 89 L. Ed. 2d 674 (1986). The trial court must carefully consider the probative value of the evidence and weigh it against the risks of admission. See Hodge, 631 S.W.2d at 758. These potential risks include "the possibility of undue prejudice, embarrassment or harassment to either a witness or a party, the possibility of misleading or confusing a jury, and the possibility of undue delay or waste of time." Id.; see also Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993).
The particular statement which Dale complains about is M.B.'s MySpace message to E.R. stating: "Thanks for turning everybody against me . . . 'cause I'm a bitch/whore." Texas Rule of Evidence 412(a) specifically states that: "In a prosecution 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 admissible." TEX. R. EVID. 412(a). Subsection (b) of rule 412, however, outlines some exceptions in which evidence of specific instances of past sexual behavior of the victim may be admitted in a criminal trial. Id. at R. 412(b). In particular, rule 412(b) provides that:
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