Matz v. State

• Decision Date: 11 March 1999
• Docket Number: No. 2-97-613-CR,2-97-613-CR
• Citation: 989 S.W.2d 419
• Parties: Harold Lee MATZ, Appellant, v. The STATE of Texas, State.
• Court: Texas Court of Appeals

Page 419

989 S.W.2d 419

Harold Lee MATZ, Appellant, v. The STATE of Texas, State.

No. 2-97-613-CR.

Court of Appeals of Texas Fort Worth.

March 11, 1999.

Ordered Published March 25, 1999.

Davis McCown, Fort Worth, for Appellant.

Tim Curry Dist. Atty., Charles M. Mallin, Tanya S. DaHoney, Christy Jack, Asst. Crim. Dist. Attys., Fort Worth, for State.

PANEL A: DAY, RICHARDS, and BRIGHAM, JJ.

OPINION

SAM J. DAY, Justice.

A jury convicted Harold Lee Matz of aggravated sexual assault of a child and assessed punishment at life imprisonment and imposed a $10,000 fine. In his first four points, Matz challenges several of the trial court's evidentiary rulings. In his fifth point, Matz argues that the cumulative errors in this case denied him a fair trial. In his sixth point, he contends that the trial court erred in failing to define the term "reasonable doubt" for the jury in the punishment phase, as it related to proof of extraneous offenses.

We affirm.

I. BACKGROUND

The victim, T.M., was seven years old when she moved into Matz's home in Grapevine with her mother (D.M.) and two brothers. About two weeks after moving into the house, T.M. witnessed her mother and Matz engaging in oral sex. Not long afterward, Matz and D.M. began including the little girl in their sexual encounters, forcing T.M. to masturbate Matz and perform oral sex on him.

The abuse did not stop there. One day, T.M. was taking a shower after spending the afternoon at Grapevine Lake with her mother, her younger brother, Matz, and a man named Gerry Coleman. While T.M. was still in the shower, Coleman entered the bathroom and told T.M. to turn around so that he could wash her back. Matz came into the bathroom, disrobed, and got into the shower with T.M. Matz then inserted his finger into T.M.'s anus and vagina. After T.M. got out of the shower, Matz took her to his bedroom. Matz then performed oral sex on T.M. as Coleman held T.M.'s hand, masturbating himself with his other hand. T.M.'s mother was in the room with them, reading a pornographic magazine.

On another day, Matz made T.M. rub baby oil on his penis. Afterward, he spread baby oil on T.M.'s back and bottom, placed his penis in the crack of her butt, and ejaculated on her back.

Coleman eventually called the police and tipped them off to the abuse. The police notified Michelle Patterson, a Child Protective Services (CPS) caseworker, who contacted T.M.'s father to set up an interview with T.M. During the interview, T.M. initially denied the abuse. Later in the interview, T.M. said that she had been afraid of getting into trouble if she talked about what had happened. She then gave Patterson a detailed account of the sexual abuse she had suffered. After a second interview with CPS, T.M. was taken to Cooks Children's Medical Center for a sexual assault exam, where she also told Dr. Jan Lamb about the abuse. Matz was subsequently arrested at his home and indicted for the offense of aggravated sexual assault.

II. ADMISSION OF EVIDENCE

A. Standard of Review

As an appellate court, we review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Green v. State, 934 S.W.2d 92, 101-02 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1200, 117 S.Ct. 1561, 137 L.Ed.2d 707 (1997); Montgomery v. State, 810 S.W.2d 372, 379-80 (Tex.Crim.App.1990). Therefore, we will not reverse a trial court as long as its ruling was within the "zone of reasonable disagreement." Green, 934 S.W.2d at 102; Montgomery, 810 S.W.2d at 391.

B. Evidence of T.M.'s Prior Sexual Conduct

In his first point, Matz contends that the trial court erred in excluding evidence that T.M. had been abused by someone other than Matz. Outside the presence of the jury, T.M. said that her father's fiance's twelve-year-old son, Adam, had also sexually abused her. T.M. said that Adam made her do "kind of" the same bad things that Matz made her do. Specifically, she said that Adam touched her "private parts," and made her touch his "privates." Adam also performed oral sex on T.M. and made her rub his penis. T.M. said these acts happened before the abuse in the present case was reported.

Matz's attorney argued that this evidence was relevant as an alternative basis of information to explain how T.M. (who was nine years old at the time of trial) was so knowledgeable about sexual matters. At trial, T.M. testified in graphic detail about the sex acts Matz and D.M. forced her to perform. For example, T.M. said that her mother showed her how to rub Matz's "private part," and demonstrated for the jury how she moved her hands to masturbate Matz. She said that D.M. and Matz had also taught her how to perform oral sex on Matz. T.M. testified that Matz put his hands on the back of her head, pulling it up and down while his penis was in her mouth. Because the average nine-year-old would not be expected to explain sexual matters so explicitly, Matz's attorney argued that without the information of the third-party assault, the jury would infer that T.M. could not have known about these matters unless Matz did them to her. The trial court held that the evidence was irrelevant and denied Matz's request.

On appeal, the State argues that this evidence was inadmissible under rule 412 of the Texas Rules of Evidence, the rape shield statute. This rule excludes evidence of specific instances of an alleged victim's past sexual conduct in a trial for aggravated sexual assault unless the evidence falls within one of several enumerated categories set out in rule 412(b)(2). See TEX.R. EVID. 412(b)(2). Evidence of specific instances of an alleged victim's past sexual behavior is only admissible if it is evidence (A) to rebut or explain scientific or medical evidence offered by the State, (B) of past sexual behavior with the accused, offered on the issue of consent, (C) that relates to the motive or bias of the alleged victim, (D) that is admissible under Rule 609, or (E) that is constitutionally required to be admitted. See id.

A number of states have held that the United States Constitution compels the admission of evidence to show an alternative basis for a child victim's knowledge of sexual matters. See, e.g., State v. Dodson, 219 Wis.2d 65, 580 N.W.2d 181, 191 (1998); State v. Budis, 125 N.J. 519, 593 A.2d 784, 791 (1991); Commonwealth v. Ruffen, 399 Mass. 811, 507 N.E.2d 684, 688 (1987); State v. Howard, 121 N.H. 53, 426 A.2d 457, 462 (1981). The constitutional provisions most often implicated in cases of this type are the sixth amendment right of confrontation and the fourteenth amendment due process right to a fair trial. See State v. Clarke, 343 N.W.2d 158, 161 (Iowa 1984). The Constitution, however, requires only the introduction of otherwise relevant and admissible evidence. See United States v. Nixon, 418 U.S. 683, 711, 94 S.Ct. 3090, 3109, 41 L.Ed.2d 1039 (1974). Thus, before evidence of an alleged victim's sexual behavior may be admitted under rule 412(b)(2)(E), the defendant must first establish the relevancy of the evidence to a material issue in the case. See TEX.R. EVID. 401. If the evidence is not relevant, it is not admissible. See TEX.R. EVID. 402. To show the relevancy of a child victim's prior sexual conduct as an alternate source of sexual knowledge, the defendant must establish that the prior acts clearly occurred and that the acts so closely resembled those of the present case that they could explain the victim's knowledge about the sexual matters in question. See State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325, 335 (1990).

In this case, Matz failed to establish that the prior acts were sufficiently similar to be relevant. While testifying that Matz rubbed his penis on her back, T.M. described feeling "warm stuff" come out of Matz's penis onto her back. Matz then told T.M. that "this is the stuff that comes out of men's private parts." T.M. also testified that Matz used baby oil when forcing her to masturbate him, and when he rubbed his penis on her bottom. ¹ Furthermore, T.M. told the medical examiner that Matz had sodomized her, but stopped because "it hurt too much." On voir dire, however, T.M. did not mention using baby oil with Adam or being sodomized by him. Moreover, she specified that unlike Matz, Adam never ejaculated.

In addition, T.M.'s detailed accounts of the sexual acts she was forced to participate in at Matz's home bears little or no resemblance to her vague account of Adam's abuse. For example, T.M. stated that Matz told her to "sit on his face" while he put his tongue inside her vagina. While Matz was performing oral sex on T.M., she said she needed to go to the bathroom. Matz told her "just pee on my face." Finally, T.M. told the medical examiner that she saw Matz "licking" D.M.'s vagina and putting his penis between D.M.'s breasts. Matz offers no explanation of how the evidence of Adam's abuse would tend to explain her understanding of these explicit sexual matters.

Furthermore, a nine-year-old child's ability to describe sexual conduct need not be acquired solely from sexual behavior. Here, the medical examiner testified that T.M. said Matz forced her to watch pornographic movies with him. In addition, T.M. said that there were "nasty" (i.e., pornographic) magazines in the house which her mother read while Matz abused T.M. on different occasions. Both the magazines and the movies provide another explanation for T.M.'s lack of innocence about sexual matters.

Matz also argues that this evidence was relevant to show that T.M. tended to fantasize about such matters or that she had been assaulted by a third person and was somehow attributing that abuse to Matz. However, Matz has provided no evidence or authority to show that either of these theories has any merit. Because Matz failed to establish how the evidence of T.M.'s past sexual conduct was relevant in this case, we hold that the trial court's decision to exclude it was not outside the zone of reasonable disagreement....