Faglie v. State
| Decision Date | 22 February 2019 |
| Docket Number | NO. 03-17-00281-CR,03-17-00281-CR |
| Parties | James Russell Faglie, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
NO. D-1-DC-15-100235, THE HONORABLE JULIE H. KOCUREK, JUDGE PRESIDING
A jury found appellant James Russel Faglie guilty of continuous sexual abuse of a child for sexually abusing his biological daughter, J.F., see Tex. Penal Code § 21.02(b), and assessed his punishment at confinement for 35 years in the Texas Department of Criminal Justice, see id. § 21.02(h).1 On appeal, appellant complains about the trial court's limitation of hiscross-examination of J.F., the admission of hearsay evidence, the admission of extraneous-conduct evidence, and the cumulative harm resulting from trial error. We affirm the trial court's judgment of conviction.
DISCUSSION
Appellant raises seven points of error. In six of them, appellant challenges the trial court's evidentiary rulings. In his first point of error, he claims that the trial court erred in refusing to allow him to cross-examine J.F. about pornographic digital evidence. In his second point of error, appellant contends that the trial court erred by admitting J.F.'s hearsay statements to the nurse practitioner who conducted the sexual-assault exam. In his third point of error, he asserts that the trial court erroneously admitted "backdoor hearsay" through the detective's testimony about J.F.'s forensic interview. In his fourth, fifth, and sixth points of error, appellant complains about the admission of the testimony concerning appellant's extraneous sexual abuse of his stepdaughter. In his final point of error, appellant argues that the "cumulative effect" of trial error requires reversal.
Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016); Sandoval v. State, 409 S.W.3d 259, 297 (Tex. App.—Austin 2013, no pet.). An abuse of discretion does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial court'sruling unless the determination "falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83 . An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93; Sandoval, 409 S.W.3d at 297.
Limitation of Cross-Examination
The record reflects that four months after J.F. disclosed the sexual abuse that appellant perpetrated against her, J.F.'s foster mother found an iPad that had images of J.F. sitting nude in front of a mirror engaging in "sexual acts on herself." Apparently, J.F. had sent the images to her boyfriend, I.R., through a messaging application on the iPad.2 At trial, appellant wanted to cross-examine J.F. about this "sexting,"3 claiming that it demonstrated J.F.'s motive to fabricate the sexual-abuse allegations against appellant. According to appellant, the sexting showed the nature of J.F.'s relationship with I.R., which he claimed was a relationship that he disapproved of and tried to prevent. He maintained that J.F. falsely accused him of sexual abuse in order to remove him as an obstacle to her relationship with I.R.
The State objected, asserting that the sexting evidence was inadmissible under Rule 412 of the Texas Rules of Evidence. During the ensuing discussion, appellant asserted that the evidence was admissible "under [the] confrontation clause or [Rule] 412" to show J.F.'s bias and motive "to get [appellant] out of the way" so she could engage in a "pretty serious relationship" with I.R. The trial court concluded that the evidence was not relevant to J.F.'s bias or motive to fabricate the allegations because the sexting occurred months after J.F.'s outcry. Further, because it was not relevant, the trial court concluded that the evidence did not have any probative value. Accordingly, the trial court did not allow appellant to question J.F. about the digital evidence.
In his first point of error, appellant asserts that the trial court abused its discretion in refusing to allow him to question J.F. about the digital evidence, which he labels "obscene" and "Ipad porn," because the limitation of his cross-examination violated this right to confrontation.
Rule 412, the "rape shield" provision, is primarily a rule of exclusion that applies in any prosecution for "sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault." Tex. R. Evid. 412(a). It explicitly declares to be inadmissible evidence of a sexual-assault victim's "past sexual behavior" when that evidence takes the form of reputation or opinion testimony. Tex. R. Evid. 412(a)(1). The rule similarly declares inadmissible any evidence in the form of specific instances of the victim's sexual behavior. Tex. R. Evid. 412(a)(2). But this latter, specific-instance prohibition comes with specific and exclusive exceptions. Tex. R. Evid. 412(b)(2). However, even if the proponent of the evidence of past sexual conduct can satisfy his burden to demonstrate its relevance and an applicable exception, the evidence of specific instances of past sexual behavior must still be excluded unless the probative value of theevidence outweighs the danger of unfair prejudice. Tex. R. Evid. 412(b)(3). And, unlike Rule 403 of the Texas Rules of Evidence, which embodies a presumption of admissibility of relevant evidence even if it has some potential to be unfairly prejudicial, see Tex. R. Evid. 403 (); Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh'g) ("Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial."), Rule 412(b)(3) tips the scale against admissibility of such evidence. Robisheaux v. State, 483 S.W.3d 205, 223-24 (Tex. App.—Austin 2016, pet. ref'd) (); see Cathy Cochran, TEXAS RULES OF EVIDENCE HANDBOOK 364 & 370 (6th ed. 2006) ( ).
The particular Rule 412 exceptions at issue in this case involve the admissibility of specific instances of past sexual behavior if the evidence "relates to the victim's motive or bias," see Tex. R. Evid. 412(b)(2)(C), or "is constitutionally required to be admitted," see Tex. R. Evid. 412(b)(2)(E). The proponent of challenged evidence generally has the burden of establishing its admissibility by a preponderance of the evidence. White v. State, 549 S.W.3d 146, 151-52 (Tex. Crim. App. 2018); Pierson v. State, 426 S.W.3d 763, 771 (Tex. Crim. App. 2014); Vinson v. State, 252 S.W.3d 336, 340 & n.14 (Tex. Crim. App. 2008). Thus, in the context of this case, it was appellant who was required to shoulder the burden to demonstrate the admissibility of the "Ipadporn" despite Rule 412's general rule of exclusion. Under the "motive or bias" exception, it was appellant's obligation to establish that the evidence about the sexting related to J.F.'s motive or bias to falsely accuse appellant, that it was probative on the issue of J.F.'s motive or bias to make the false allegations of sexual assault, and that it was more probative than unfairly prejudicial. Under the "constitutionally required" exception, it was appellant's obligation to establish that the Confrontation Clause, see U.S. Const. amend. VI (), required the sexting evidence to be admitted and that it was more probative than unfairly prejudicial. Because the burden for either exception was appellant's, any ambiguity in the evidence must operate to his detriment.
Here, the trial court concluded that the evidence of J.F.'s sexting was "not relevant." The record supports the trial court's determination that the sexting evidence was not relevant because it was not related to J.F.'s motive or bias to falsely accuse appellant. First, as the trial court noted, the images were discovered after J.F.'s outcry and after appellant was arrested on the sexual-abuse charges. Second, the defensive theory at trial was that appellant sought to prevent J.F. from engaging in a relationship with I.R. because he allegedly disapproved of it. However, no evidence before the trial court showed that appellant was an obstacle to the relationship or that he disapproved of it. In fact, the evidence before the court when appellant sought to cross-examine J.F. about the sexting showed the opposite—that appellant approved of I.R. and of J.F.'s relationship with him.4 Basedon the evidence before it, the trial court could have reasonably concluded that appellant failed to establish that evidence of the sexting related to J.F.'s motive to falsely accuse appellant or her bias against him.
Further, regarding appellant's claim that his right to confrontation satisfied the "constitutionally required" exception for the...
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