Wilbanks v. State

• Decision Date: 18 January 2018
• Docket Number: NO. 02-16-00305-CR,02-16-00305-CR
• Parties: DAVID WILBANKS APPELLANT v. THE STATE OF TEXAS STATE
• Court: Texas Court of Appeals

DAVID WILBANKS APPELLANT v. THE STATE OF TEXAS STATE

NO. 02-16-00305-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

January 18, 2018

FROM THE 16TH DISTRICT COURT OF DENTON COUNTY

TRIAL COURT NO. F16-1258-16

MEMORANDUM OPINION¹

I. INTRODUCTION

Appellant David Wilbanks appeals his convictions and sentences for sexual assault and for continuous sexual abuse of a child. Wilbanks raisesseven issues challenging various evidentiary rulings by the trial court.² Because Wilbanks's complaints are either not preserved for our review or do not raise any reversible error, we will affirm the trial court's judgment.

II. BRIEF FACTUAL AND PROCEDURAL BACKGROUND

When she was fourteen years old, Gloria³—who had lived with Wilbanks from time to time while he financially and emotionally supported her family—told her best friend's mother that Wilbanks had repeatedly performed sexual acts with her, beginning with fondling when she was six years old and continuing until the time of her outcry. At the urging of her friend's mother, Gloria told her own mother, who contacted the police.

As part of an investigation by both the police and Child Protective Services, Lori Nelson conducted a forensic interview of Gloria. During the interview, Gloria provided details about what Wilbanks had done to her. Gloria told Nelson that Wilbanks began digitally penetrating her when she was six and that he began having intercourse with her when she was about eight or nine, which continued until she was fourteen.

Ultimately, a grand jury issued a three-count indictment charging Wilbanks with (1) indecency with a child by engaging in sexual contact with Gloria whenshe was younger than seventeen (Count One); (2) continuous sexual abuse of Gloria before she turned fourteen (Count Two); and (3) sexually assaulting Gloria when she was younger than seventeen (Count Three). See Tex. Penal Code Ann. §§ 21.02, 21.11(a)(2), 22.011(a)(2)(C) (West Supp. 2017). After a trial, a jury found Wilbanks not guilty of Count One but guilty of Counts Two and Three and assessed his punishment at fifty years' confinement for Count Two and at twenty years' confinement for Count Three. The trial court sentenced Wilbanks in accordance with the jury's assessment and ordered the sentences to run consecutively. This appeal followed.

III. STANDARD OF REVIEW AND LAW ON PRESERVATION⁴

A trial court's decision concerning the admission or exclusion of evidence and concerning the extent of cross-examination is reviewed under an abuse-of-discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (concerning the admission or exclusion of evidence); Cantu v. State, 939 S.W.2d 627, 635 (Tex. Crim. App.) (concerning the extent of cross-examination), cert. denied, 522 U.S. 994 (1997). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement. Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997).

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling if they are not apparent from the context of the request, objection, or motion. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016). The proponent also has the responsibility to "at the earliest opportunity, [do] everything necessary to bring to the judge's attention the evidence rule [or statute] in question and its precise and proper application to the evidence in question." Bonilla v. State, 452 S.W.3d 811, 817 (Tex. Crim. App. 2014). A complaint is not preserved "if the legal basis of the complaint raised on appeal varies from the complaint made at trial." See Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009). To determine whether a complaint on appeal comports with a complaint made at trial, we consider the context in which the complaint was made and the parties' shared understanding at that time. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009).

IV. REFUSAL TO PERMIT QUESTIONING OF GLORIA ABOUT INSTANCES OF SEXUAL

TOUCHING OR SEXUAL BEHAVIOR BY OTHERS

In his first issue, Wilbanks contends that the trial court violated his Confrontation Clause and Due Process rights under the United States Constitution by refusing to permit him to cross-examine Gloria "about otherinstances in which she alleged inappropriate touching and revealed it to her family." Wilbanks contends this allegedly erroneous ruling constitutes reversible error because the evidence went to Gloria's credibility⁵ and was admissible to correct a false impression created by Gloria—that she did not make an earlier outcry because she was scared and did not know what to do. The State argues that Wilbanks failed to preserve his Confrontation Clause and Due Process complaints because he did not raise them in the trial court. We first address the State's lack-of-preservation contentions.

A. Confrontation Clause Violation and Due Process Complaints

Not Preserved

Prior to voir dire, Wilbanks's counsel informed the trial court that Gloria had referenced three incidents involving three other perpetrators during Nelson's forensic interview of her.⁶ Wilbanks requested permission to voir dire the jury "about a credibility issue if someone makes allegations against multiple persons versus one person" despite the motion in limine granted for the State concerning this issue. The trial court voiced concern that the proposed question would be an impermissible commitment question and that it would also violate rule 412. See Tex. R. Evid. 412. The trial court told Wilbanks's counsel that she could ask thepanel about credibility in general but not in reference to whether a person had made allegations against others in the past.

Wilbanks requested a bench conference during his cross-examination of Gloria; he sought the trial court's permission to cross-examine Gloria about the three incidents involving other alleged perpetrators. Specifically, Wilbanks argued that he wanted to establish for the jury that with those incidents, Gloria had told someone right away:

[Wilbanks's Counsel]: . . . I think it's important that the jury know that she has had situations in which she had been -- I mean, I know this is tough territory, Your Honor. However, she was not hesitant to reveal inappropriate touching in these other three instances. And I think the jury needs to hear that.

THE COURT: For what purpose?

[Wilbanks's Counsel]: Because she's acted like, I'm scared, I didn't know what to do. Yet she had three other incidences that happened even younger than six years of age that she knows how to respond to those situations. So she can't -- and one, under oath, she can't say without being confronted about it that she doesn't know what to do about it when she has three previous incidences where she reveals right away.

THE COURT: Isn't that trying to impeach her as to a collateral matter?

[Wilbanks's Counsel]: It's not a collateral matter, Your Honor. She's testified --

THE COURT: It's not in this case. Doesn't involve this Defendant. Doesn't involve the allegations made in this case.

[Wilbanks's Counsel]: It involves her ability to make claims about what happened to her. Because if she's now just saying that all these things happened and she didn't know what to do, that's dishonest because she does know what to do. And that is not acollateral matter here. That goes straight to the heart of her credibility.

THE COURT: Response?

[State's Counsel]: I don't think that it's relevant, Your Honor. And it is a kind of a way to attack her. As far as these other allegations go, at the end of the forensic interview, the forensic interviewer usually asks, Oh, and after what we've talked about, were there any other instances where someone has touched you inappropriately. And she revealed other instances.

Those other instances haven't been things that haven't been -- it's not that they're not substantiated. The police investigated this certain particular incident. And as far as when she -- in the forensic interview she makes claims of telling her mom about [an incident] and telling her brother about when another [person] touched her.

The last situation was when she was a teenager. And the first time that she had told the -- it was in the forensic interview, I believe, as to that. But this all just seems not relevant. And it just seems to prejudice the jury to these other claims made against other individuals. It's not relevant to this Defendant.

. . . .

[Wilbanks's Counsel]: Your Honor, this goes directly to this witness's credibility. . . .

When she's telling this jury -- and I hate to do this in front of her because it feels like child abuse to me. But when she tells this jury that she didn't know what to do or when the first thing happened, she ran out and brothers were right there. She says nothing. And she acts like she didn't know what to do. Yet three different times she knows what to do. That's absolutely relevant to this case. Completely relevant.

THE COURT: Prior to that occasion?

[Wilbanks's Counsel]: Yes.

THE COURT: Well, I thought we just heard that one of them was since she's been a teenager?

[Wilbanks's Counsel]: I'm sorry, one of them was when she was a kid before . . . .

THE COURT: That's prior to the first incident that happened . . . ?

[Wilbanks's Counsel]: Regardless, we don't know when the actual situation --

THE COURT: Maybe none of those other people told her not to say anything.

[State's Counsel]: That's right.

THE COURT: I don't know. I don't know what the facts are of those other instances. And I think it's going to be -- it's very prejudicial. And I don't think that it's proper fodder for impeachment. And I'm not going to let you ask her about

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