Linney v. State

• Decision Date: 07 May 2013
• Docket Number: No. 14–11–01015–CR.,14–11–01015–CR.
• Parties: Timothy Garrett LINNEY, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

401 S.W.3d 764

Timothy Garrett LINNEY, Appellant,

v.The STATE of Texas, Appellee.

No. 14–11–01015–CR.

Court of Appeals of Texas,

Houston (14th Dist.).

May 7, 2013.

George McCall Secrest, Jr., Houston, for Appellant.

Mandy Miller, Katy, for the State.

OPINION

JEFFREY V. BROWN, Justice.

A jury convicted appellant Timothy Garrett Linney of indecency with a child and assessed his punishment at eight years' confinement in the Texas Department of Criminal Justice, Institutional Division, probated for eight years. In five issues, Linney appeals. We affirm.

I

Linney, the appellant, is complainant Jane's ¹ paternal uncle. Throughout her young life, Jane and her sister, Kelly, lived with their parents, Jim and Cindy. Linney lived nearby with his wife, Valerie, and their young son, Steve. Jim and Linney's parents (Jane's grandparents), David and Donna, also lived nearby. Jane had good relationships with her extended family members and saw them relatively often.

In 2005, Jane began cutting herself to cope with stress and low self-esteem that resulted from being bullied at school. When her parents discovered Jane's self-destructive behavior, they took her to a counselor named Mary Maurer, who treated Jane for about a year. During that time, Maurer helped Jane improve her coping skills. By the time Jane stopped seeing Maurer in 2006, Jane had stopped cutting herself, and she was no longer being bullied at school.

During the summer of 2008, Jane and her family frequently went to David and Donna's house to swim and spend time together. On June 21, when Jane was fourteen years old, she went to Linney's house to babysit Steve. Because Linney and Valerie knew they were going to be out late, they planned for Jane to spend the night at their house, and she was already asleep when they got home.

When Linney awoke early the next morning, he got out of bed and, wearing only his boxers, went to the guest bedroom to see if Jane was awake. According to Jane, Linney got into bed with her and pressed himself up against her from behind, and she could feel his penis. At trial, Linney denied getting into the bed and insisted he remained at the bedroom door. After they talked for a few minutes, Linney went into the living room. When Jane got up shortly thereafter, Linney asked her if she wanted to watch a movie, and she agreed. Valerie got up to check on Steve and, seeing Linney in his boxers, suggested he put shorts on. Linney complied, and Valerie got back in bed. When Linney returned to the living room, Jane was lying on the couch. Linney removed the cushions from the back of the couch and lay down behind her.

Linney and Jane have diametrically different accounts of what happened next. According to Jane, she and Linney were both lying on their sides underneath a blanket, and, once again, Linney pressed himself up against her from behind and she could feel his erect penis on her lower back. Linney placed one hand on her breast over her shirt and his other hand on her thigh. He gradually moved his hand up her thigh and underneath her shorts and underwear until he was touching her vagina. Jane testified she felt confused, and she was too embarrassed to say anything or try to leave because she did not want to acknowledge what was happening. At trial, Linney testified Jane was lying on her back and he was lying next to her on his side with his hands over the blanket. He denied touching her at all and specifically denied touching her breast or vagina.

Jane and Linney agree that at some point during the movie, Steve woke up, came into the living room, and got between them on the couch. After a few minutes, Linney got up to change Steve's diaper, and Jane went into the bathroom until she heard Valerie get up. After Jane came out, Valerie and Steve left to pick up doughnuts. Jane stayed at the house with Linney. She phoned her father to ask how she was going to return home, and he said Valerie or Linney would take her. After breakfast, Linney drove Jane home.

In mid-August, Valerie called Jane and asked her to babysit Steve again a few days later. Because Valerie needed Jane early in the morning, she suggested Jane sleep over the night before. Although Jane agreed, Cindy thought she seemed stressed and reluctant to sleep at Valerie and Linney's house, so she offered to drive Jane to babysit in the morning. Cindy thought Jane seemed “too relieved” about the offer, so she asked whether anything was wrong. Jane initially said no, but Cindy sensed otherwise. After she encouraged Jane to be honest, Jane reluctantly explained how Linney touched her after she babysat Steve in June. Jane and Cindy immediately told Jim.

The next day, Cindy made an emergency appointment to see Maurer. Cindy told Maurer about Jane's disclosure, and Maurer, pursuant to her legal duty, immediately reported it to Children's Protective Services. On August 28, Jane was taken to the Children's Assessment Center (CAC) for a forensic interview. Jane described the alleged offense. She also explained that on several previous occasions when she was playing keep-away with Linney in David and Donna's pool, he had held her from behind, pressed his body against hers, and she had felt his erect penis against her back. Jane was then given a physical examination by Dr. Farja Pereira, during which she answered questions about her medical history and emotional symptoms. Linney was required to report to the CAC for an interview the following week, which is when he first learned of Jane's accusation.² Jane's extended family has not spoken to her or her immediate family since that time.

Linney was indicted for two counts of indecency with a child—one for touching Jane's vagina, and one for touching her breast through her clothing—and he pleaded not guilty to both. A jury found him not guilty of the first count and guilty of the second. On appeal, Linney argues: (1) the trial court unconstitutionally limited his right to cross-examine witnesses; (2) the trial court unconstitutionally denied his right to put on a defense at trial; (3) the trial court erred by admitting into evidence purported “outcry” testimony from Cindy; (4) the trial court erred by overruling Linney's objection to inadmissible hearsay testimony of Kelly; and (5) reversible error is presented by the cumulative effect of those errors. Because Linney's first and second points of error arise from the same facts, we consider them together.

II

During its case in chief, the State introduced evidence that in September of 2008, Jane began experiencing increased anxiety and having nightmares. Shortly thereafter, Maurer diagnosed her with post-traumatic stress disorder (PTSD). In the months that followed, Jane's peer relationships deteriorated, and she began drinking, using drugs, and sneaking out of the house. As her deviant behavior gradually worsened, she began cutting herself again, experiencing suicidal ideations, and sexually acting out. The State concluded its case in chief with the expert testimony of Dr. Lawrence Thompson, a clinical psychologist who specializes in child victims of sexual abuse. Dr. Thompson testified that sexual acting out and heightened levels of anxieties and interpersonal difficulties are characteristics commonly seen in children who have been sexually abused. Through this evidence, the State invited the jury to infer from those behaviors that the offense in fact occurred.

Linney sought to challenge that inference with evidence of an extraneous traumatic event—Jane being rejected by the boy to whom she lost her virginity—which Linney argued was the actual reason Jane began cutting herself again. Linney attempted to elicit testimony about the extraneous event from Cindy, Jim, Jane, and Maurer, but the State consistently objected to the line of questioning. The trial judge limited the testimonies of each witness to different extents. On appeal, Linney argues the trial court's limitations violated his constitutional rights to cross-examine the State's witnesses and to present a meaningful defense.

A

Criminal defendants have a constitutionally protected right to cross-examine witnesses. U.S. Const. amend. VI; Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App.2000). The scope of appropriate cross-examination is necessarily broad: “A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.” Tex.R. Evid. 611(b); Caron v. State, 162 S.W.3d 614, 617 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Nevertheless, the trial courts retain wide latitude to impose reasonable limits on cross-examination. Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431. The trial court must carefully consider the probative value of the evidence and weigh it against the risks of admission. Hodge v. State, 631 S.W.2d 754, 758 (Tex.Crim.App. [Panel Op.] 1982). 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); Castillo v. State, 939 S.W.2d 754, 758 (Tex.App.-Houston [ 14th Dist.] 1997, pet. ref'd).

Additionally, whether rooted in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986)); Holmes v. State, 323 S.W.3d 163, 173 (Tex.Crim.App.2009). The exclusion of a defendant's evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes him from...