Lopez v. State, 04-96-00343-CR
| Decision Date | 29 January 1999 |
| Docket Number | No. 04-96-00343-CR,04-96-00343-CR |
| Parties | Rudolfo LOPEZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Jacquelyn L. Snyder, Adkins, for appellant.
Steven C. Hilbig Criminal Dist. Atty., San Antonio, for appellee.
Sitting: TOM RICKHOFF, Justice ALMA L. LOPEZ, Justice KAREN ANGELINI, Justice.
Rudolfo Lopez was convicted of aggravated sexual assault of a child and indecency with a child by contact. Punishment was assessed by the jury at twelve years in prison. Lopez appealed to this court, arguing that the trial court erred by excluding evidence that the twelve-year-old complainant, P.M., had made a prior false accusation of abuse by his mother. We reversed and remanded, holding that the trial court erred by excluding this evidence because it was relevant to P.M.'s credibility. See Lopez v. State, No. 04-96-00343-CR, 1997 WL 404268 (Tex.App.--San Antonio 1997) (unpublished). On the State's petition for discretionary review, the court of criminal appeals vacated our opinion and remanded the cause to this court to address the State's argument that the evidence was inadmissible pursuant to Rule 608(b) of the Texas Rules of Criminal Evidence. 1 We hold that the trial court's application of 608(b) in this instance impermissibly conflicted with appellant's constitutional right of confrontation. We reverse the judgment of conviction and remand the case for a new trial.
The complainant, who in 1992 was a twelve-year-old learning disabled student, appears to have endured a troubled childhood. Two years before making an outcry statement against Lopez, P.M. accused his mother of hitting him and throwing him against a "steel washer." A case worker with the Texas Department of Protective and Regulatory Services (TDPRS) investigated this accusation and filed a report. The case worker described P.M. as "very provocative and hard to handle," and had "the run of the house." She found that P.M. was unable to tell her what a "steel washer" was or where it was in his home, that P.M. did not have any injuries, and the incident was "ruled out." The report indicated that P.M. had trouble making and keeping friends because he refused to bathe and because he lied to them. He "is constantly making up stories." The case worker recommended that the case be closed. 2
P.M. testified at trial that, while living with his father the following year, he and Lopez engaged in various sexual acts. On cross-examination, Lopez's attorney attempted to impeach P.M.'s credibility by asking him if he ever lied about "big things." P.M. responded that he did not. Counsel then began to question P.M. about the TDPRS report, and the State objected. After an off-the-record bench conference, counsel changed the line of questioning. The court later stated that the report was irrelevant. Lopez's attorney made a bill of exception, explaining that she had intended to elicit some statements in the report and to impeach P.M. with a prior inconsistent statement, specifically, his prior accusation about his mother.
The jury heard testimony given by Lopez's wife, Rosie, about their relationship with each other and with P.M. Lopez met his future wife in April of 1992 while he was living with P.M.'s father. Lopez began living with Rosie in August of that year and they married on January 1, 1993, and moved to Dallas at the end of February 1993. Rosie testified that during this time she had many occasions to observe J.M's mistreatment and neglect of his son, that she frequently admonished J.M. for this maltreatment, including the inappropriate sex education he gave his own son. Rosie and Rudolfo Lopez frequently took care of P.M. Under cross-examination, Rosie stated:
What I am suggesting was, that Paul, during our conversations, would come to me and tell me that he wanted--he--was--he hated Joe so much he wanted to leave. He didn't want to live with [his father] or [his mother]. When he got to know me and my sons and got to be a part of the relationship that Rudy and I had, he asked for me and Rudy to adopt him. When I told him that we couldn't adopt him, he was very upset.
So that, my opinion is, that when Rudy and I left to Dallas, he felt that the only people that had taken the time to talk to him and give him any type of attention were deserting him.
Rosie also testified that, in her opinion, P.M. was an abused child, but that she did not believe her husband was the abuser.
Lopez argues that the trial court erred by excluding evidence regarding P.M.'s prior accusation against his mother because it was relevant to P.M.'s credibility. The State counters that even if the evidence was relevant, it was inadmissible under Texas Rule of Criminal Evidence 608(b).
Rule 608(b) provided that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of a crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence." Lopez argues that P.M.'s prior accusation against his mother was false and should have been considered by the jury in determining whether his accusation against Lopez was also false. However, P.M.'s prior accusation against his mother could be considered by the fact finder to be a "specific instance" of the witness (P.M.) lying, and it was offered "for the purpose of attacking ... his credibility." Therefore, under the express terms of Texas Rule of Criminal Evidence 608(b), the prior accusation may not be inquired into on cross-examination nor proven by extrinsic evidence. See Gonzales v. State, 929 S.W.2d 546, 549 (Tex.App.--Austin 1996, pet. ref'd); Ruiz v. State, 891 S.W.2d 302, 306 (Tex.App.--San Antonio 1994, pet. ref'd); Ramirez v. State, 830 S.W.2d 827, 828-29 (Tex.App.--Corpus Christi 1992, no pet.).
Rule 608(b) is substantially similar to Rule 608(b) of the Federal Rules of Evidence. But the federal rule contains an exception that is relevant here. It provides that specific instances of the conduct of a witness may, "in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness ... concerning the witness' character for truthfulness or untruthfulness...." FED.R.EVID. 608(b)(1); see United States v. Reid, 634 F.2d 469, 473-74 (9th Cir.1980) (). The court of criminal appeals has noted that in adopting Rule 608(b), it did not adopt the exceptions provided by the federal rule. See Ramirez v. State, 802 S.W.2d 674, 676 (Tex.Crim.App.1990). Instead, the Texas version of Rule 608(b) is described as very restrictive, allowing no exceptions. See id. Nevertheless, a concurring justice noted that the common law general rule regarding impeachment on a collateral matter survives the adoption of Rule 608(b). Justice Miller pointed to Rule 607, which allows the credibility of a witness to be impeached by any party, as a vehicle by which one may correct a false impression made by a witness by utilizing a specific instance of that witness's conduct. See id. at 677 (Miller, J., concurring). There is an additional exception to the restrictive reading of Rule 608(b) under Rule 613(b) where "cross-examination about matters that are relevant to showing that the witness has a bias, interest or motive to testify untruthfully," are permitted. See HELEN D. WENDORF, DAVID A. SCHLUETER, AND ROBERT R. BARTON, TEXAS RULES OF EVIDENCE MANUAL, Rule 608, at VI-41 (5th ed.1998); TEX.R. EVID. 613(b) (formerly TEX.R.CRIM. EVID. 612(b)); Carroll v. State, 916 S.W.2d 494, 500-01 (Tex.Crim.App.1996).
Since the adoption of the former Texas Rules of Criminal Evidence in 1987, at least two courts have indicated that evidence that a complainant has previously made false accusations is admissible to demonstrate the falsity of the accusation at issue. See Lape v. State, 893 S.W.2d 949, 955-56 (Tex.App.--Houston [14th Dist.] 1994, pet. ref'd); Hughes v. State, 850 S.W.2d 260, 262-63 (Tex.App.--Fort Worth 1993, pet. ref'd). Neither court attempted to reconcile the admission of this evidence with Rule 608(b). The Hughes Court indicated, however, that the evidence would be admissible if the defendant established that it demonstrated interest, bias, or motive to testify falsely. See 850 S.W.2d at 263 (citing Moody v. State, 827 S.W.2d 875, 891 (Tex.Crim.App.1992)). In Moody, the court drew an apparent distinction between evidence merely attacking a witness's character for truthfulness and evidence showing that the witness had a motive or bias that would cause him to lie. See 827 S.W.2d at 891. The court concluded that if the evidence would show bias or motive by the witness against the defendant, the evidence should be admitted pursuant to the constitutional right of confrontation. See id.; see also Carroll v. State, 916 S.W.2d 494, 501 (Tex.Crim.App.1996); Driggers v. State, 940 S.W.2d 699, 708 (Tex.App.--Texarkana 1996, pet. ref'd); Gonzales, 929 S.W.2d at 549. Lopez argues only that P.M.'s prior false accusations are relevant to his character for truthfulness and he does not assert any infringement of his constitutional right of confrontation. Nevertheless, we have an obligation to construe Rule 608(b) consistently with the Constitution.
The right of confrontation, arising from the Confrontation Clause of the United States Constitution, secures one's right of cross-examination. U.S. CONST. amend. VI; see Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) (). "The central concern of the Confrontation Clause [of the Sixth Amendment] is to ensure the reliability of the evidence against...
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