Stephens v. State

• Decision Date: 22 October 1998
• Docket Number: No. 03-97-00415-CR,03-97-00415-CR
• Citation: Stephens v. State, 978 S.W.2d 728 (Tex. App. 1998)
• Parties: Heath Lane STEPHENS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 728

978 S.W.2d 728

Heath Lane STEPHENS, Appellant, v.The STATE of Texas, Appellee.

No. 03-97-00415-CR.

Court of Appeals of Texas Austin.

Oct. 22, 1998.

Martin Underwood, Comstock, for Appellant.

Stephen R. Lupton, District Attorney, San Angelo, Lisa M. Tanner, Assistant Attorney General, Austin, for State.

Before YEAKEL, C.J., and B.A. SMITH and ONION, ^* JJ.

ONION, Justice.

This is an appeal from a conviction for sexual assault committed on July 20, 1995.SeeTex. Penal Code Ann. § 22.011(a)(1)(A)(West Supp.1998).¹The jury found appellantHeath Lane Stephens guilty and assessed his punishment at 12 years' imprisonment.

Points of Error

Appellant advances two points of error.First, he contends that the "prosecution of this case was conducted by a person without legal authority to do so."Second, appellant urges that the "trial court erred in excluding evidence relevant to consent by misapplying Rule 412,Texas Rules of Evidence."

A Proper Prosecutor?

Appellant argues that the elected district attorney of the 51st Judicial District had the duty and obligation to represent the State in all criminal cases within the district but did not do so in the instant case.SeeTex. Const. art. V, § 21;Tex.Code Crim. Proc. Ann. art. 2.01(West Supp.1998);Tex. Gov't Code Ann. § 43.130(West 1988).Appellant acknowledges that there is a procedure for the appointment of an attorney pro tem, but contends that the basis or grounds for replacing the district attorney as required by article 2.07 were not met.Tex.Code Crim. Proc. Ann. art. 2.07(West 1997& Supp.1998).Appellant asserts that Lisa Tanner, an assistant attorney general, and the purported attorney pro tem, represented the State in the instant case without legal authority to do so.He claims that he was deprived of the right to deal with the prosecutor elected by the people.

Appellant argues that Tanner was without authority to prosecute the case because an attorney pro tem can be appointed under article 2.07(a) only when the attorney for the State is disqualified to act, is absent from the county or district, is otherwise unable to perform the duties of his office, or in any instance where there is no attorney for the State.Appellant contends that none of these requirements were met with regard to the elected district attorney.The district attorney's motion for the appointment of a "special prosecutor" was based on the assertion that the victim and her family had requested the appointment of a "special prosecutor" and that the district attorney did not oppose the request.The trial court granted the motion finding that the reasons set forth were sufficient.

Article 2.07(b-1) provides that an attorney for the State who is not disqualified to act may request the trial court to permit him to recuse himself in a case for good cause and upon approval by the court is disqualified.This is the procedure that was followed in the instant case.The district attorney was removed from the case and his disqualification met the requirement in article 2.07(a).Lisa Tanner took the oath as attorney pro tem and was in control and management of the case.

Moreover, appellant's trial counsel was aware of the trial court's action and the appointment of a "special prosecutor."At no time during the trial did appellant object to the authority of the attorney pro tem to conduct the prosecution.The failure to object waived any error.SeeTex. R. App. P. 33.1(former Rule 52(a));Stanley v. State, 880 S.W.2d 219, 220(Tex.App.--Fort Worth 1994, no pet.);see alsoEthington v. State, 819 S.W.2d 854, 859-60(Tex.Crim.App.1991).²Further, in the absence of a showing to the contrary, the presumption obtains that the person who acted and was recognized by the trial court in prosecuting the case was duly authorized and qualified.SeeEppes v. State, 10 Tex. 474, 475(1853);see alsoCook v. State, 146 Tex.Crim. 523, 176 S.W.2d 941, 943(1944)(where prosecutor was at least an "officer de facto," no collateral attack on his authority was permitted).

Distinction Between Terms

Because the terms "special prosecutor" and "attorney pro tem" were used interchangeably in the instant record, we call attention to the distinction between the terms.A "special prosecutor," with the consent of the district attorney, assists the district attorney in the investigation and prosecution of a particular case, but the district attorney is responsible for the prosecution, control and management of the case.SeeState v. Rosenbaum, 852 S.W.2d 525, 529(Tex.Crim.App.1993)(Clinton, J., concurring);Rogers v. State, 956 S.W.2d 624, 625 n. 1(Tex.App.--Texarkana1997, pet. ref'd).The "special prosecutor" need not be appointed by the trial court and is not required to take the constitutional oath of office where he acts with the permission of the district attorney.SeeRosenbaum, 852 S.W.2d at 529 n. 2(Clinton, J., concurring);Lopez v. State, 628 S.W.2d 77, 80(Tex.Crim.App.1982);Reed v. State, 503 S.W.2d 775, 776(Tex.Crim.App.1974);Lopez v. State, 437 S.W.2d 268, 269(Tex.Crim.App.1968).The utilization of a special prosecutor is not predicated upon the absence or disqualification of the elected district attorney.SeeDavis v. State, 840 S.W.2d 480, 487(Tex.App.--Tyler1992, pet. ref'd).

An "attorney pro tem" is appointed by the district court in accordance with statutory provisions.SeeTex.Code Crim. Proc. Ann. art. 2.07(West 1997& Supp.1998).After taking the required constitutional oath of office, the appointee assumes the duties of the elected district attorney and in effect replaces the latter in performing germane functions of the office for purposes contemplated by the appointment.SeeRosenbaum, 852 S.W.2d at 529(Clinton, J., concurring);Rogers, 956 S.W.2d at 625 n. 1.

The term "special prosecutor" is commonly used in an expansive and often improper manner by the bench and bar when reference should be to "attorney pro tem" as contemplated by article 2.07.This confusion of terms is reflected in appellate opinions.See, e.g., Rosenbaum, 852 S.W.2d at 526 n. 1;Ballard v. State, 519 S.W.2d 426, 428(Tex.Crim.App.1975);State v. Broaddus, 952 S.W.2d 598, 599(Tex.App.--Houston [14th Dist.]1997, pet. granted);see alsoBusby v. State, No. 1284-97, slip op. 1-3, --- S.W.2d ----, ---- - ----(Tex.Crim.App.Sept. 16, 1998)(Mansfield, J., dissenting).

In the instant case, the terms were used interchangeably, but it is clear that the trial court appointed an attorney pro tem under article 2.07.We do not understand appellant to contend otherwise.In such cases, the motion for the appointment of an attorney pro tem, the order appointing such officer, and the constitutional oath should be carefully worded to distinguish between an "attorney pro tem" and a "special prosecutor."³The first point of error is overruled.

Rule 412

In the second point of error, appellant contends that the "trial court erred in excluding evidence relevant to consent by misapplying rule 412,Texas Rules of Evidence."⁴He argues that he should have been permitted to show that the unmarried 17-year-old complainant was pregnant at the time of the sexual assault.He urges that the fact of pregnancy is not reputation or opinion evidence or evidence of a specific instance of an alleged victim's past sexual behavior as contemplated by Rule 412.He argues that even if pregnancy is included within the scope of the rule under the facts of this case, the need to expose the complainant's motive to lie ⁵ and therefore impeach her testimony of non-consent makes the evidence more probative than prejudicial.⁶

The history of Rule 412 and its forerunners may be found elsewhere and need not be restated here.See, e.g., Allen v. State, 700 S.W.2d 924, 928-32(Tex.Crim.App.1985);Cuyler v. State, 841 S.W.2d 933, 936(Tex.App.--Austin 1992, no pet.);Hulen D. Wendorf, David A. Schlueter & Robert R. Barton, Texas Rules of Evidence, article IV at 151-52 (3d ed.1994);1 Steven Goode, Olin Guy Wellborn, III & M. Michael Sharlot, Guide to the Texas Rules of Evidence: Civil and Criminal, § 412.1 at 295-97(Texas Practice--1993).

Rule 412, like its predecessor statute, represents an explicit decision to eliminate trial practices that may have frustrated society's vital interest in the prosecution of sexual crimes.SeeAllen, 700 S.W.2d at 929-30;Cuyler, 841 S.W.2d at 936;see alsoDraheim v. State, 916 S.W.2d 593, 599(Tex.App.--San Antonio1996, pet. ref'd).

Rule 412 applies in prosecutions for sexual assault, aggravated sexual assault, or for attempts to commit sexual assault or aggravated sexual assault.Rule 412(a) absolutely prohibits opinion or reputation evidence of the past sexual behavior of an alleged victim in these prosecutions.Under Rule 412(b), however, evidence of specific instances of past sexual behavior may be admitted when three conditions are met.First, the procedural requirements of paragraph (c) and (d) concerning the in-camera hearing and the sealing of the record must be satisfied.Second, the proponent of the evidence must establish that the evidence of specific instances of the victim's sexual behavior fall into one of the five categories set forth in Rule 412(b)(2).Third, under Rule 412(b)(3) the probative value of the offered evidence must outweigh the danger of unfair prejudice.Even if the evidence falls within the enumerated categories of Rule 412(b)(2), the court must further find that its probative value outweighs the danger of unfair prejudice.SeeHolloway v. State, 751 S.W.2d 866, 869-70(Tex.Crim.App.1988).Simply put, if the evidence falls within any of the exceptions itemized in Rule 412(b)(2) and ⁷ its probative value outweighs the danger of unfair prejudice, it is admissible.SeeHood v. State, 944 S.W.2d 743, 745-47(Tex.App.--Amarillo 1997, no pet.)(citingBoyle v. State, 820 S.W.2d 122, 148-49(Tex.Crim.App.1989), cert. denied, 503 U.S. 921, 112 S.Ct. 1297, 117 L.Ed.2d 520...