In re O.O.A.
In re O.O.A.
Opinion of the Court
OPINION
Appellant O.O.A., a juvenile, appeals the trial court’s order of adjudication against him for engaging in delinquent conduct by engaging in sexual contact with a child younger than 17-years-old. After the jury found that appellant engaged in delinquent conduct, the trial court assessed punishment at 24 months’ probation. In one issue, appellant contends that the trial court erred by denying appellant’s request to cross-examine the complainant regarding her sexual orientation. Because we find such evidence was properly excluded on this record as irrelevant, we affirm.
Background
As 16-year-old L.J. was walking to the school nurse’s office between classes on October 9, 2009 to buy crackers,
L.J. then walked into the nurse’s office, but did not tell the nurse what happened because there were other students in the
At trial, defense counsel asked L.J. about her interview at the Center, which was videotaped.
Later dui’ing L.J.’s testimony, appellant’s counsel approached the bench, and the following colloquy ensued:
MR. HECKER [for appellant]: It is the position of the child that the sexual preference of this young lady is impoi’tant and that the jury should be able to hear it because it could have a relationship between her testimony and the fact that she just doesn’t relate to guys and I would ask that I would be able to ask her if her preference is that she’s gay.
MS. JOHNSON [for the State]: Even if she doesn’t like guys, it doesn’t mean that a guy has a right to grab her breasts.
MR. HECKER: Well, it can have something to do with why she’s making this allegation.
THE COURT: I’m not going to allow the question. I don’t see the relevance at this point.
MR. HECKER: If I should ask — could I ask does she like guys?
THE COURT: No.
Relevancy
In his sole issue, appellant contends that the trial court abused its discretion in denying appellant’s request to question L.J. about her sexual orientation in violation of appellant’s Sixth Amendment right of confrontation under the United States Constitution and Texas Rule of Evidence 613(b). The State points out that, even though the trial court allowed appellant to cross-examine L.J. outside the pi'esence of the jury, appellant did not make a record of the questions he wanted
But even if appellant had preserved error, his issue lacks merit. The determination of admissibility of evidence is within the sound discretion of the trial court and will not be overturned so long as the trial court’s ruling was within the zone of reasonable disagreement. Lacaze v. State, 346 S.W.3d 113, 120-21 (Tex.App.-Houston [14th Dist.] 2011, no pet. h.). The Sixth Amendment right to confront witnesses includes the right to cross-examine witnesses to attack their general credibility or to show their possible bias, self-interest, or motives in testifying. Smith v. State, 352 S.W.3d 55, 64 (Tex.App.-Fort Worth 2011, no pet.). This right is not unqualified, however; the trial judge has wide discretion in limiting the scope and extent of cross-examination, as appropriate. See id.
Texas Rule of Evidence 613(b) allows a party to impeach a witness “by proof of circumstances or statements showing bias or interest on the part of such witness,” but that rule must be tempered with Rules 402 and 403, which provide that evidence must be relevant to be admissible and even relevant evidence may be excluded when “its probative value is substantially outweighed by the danger of unfair prejudice.”
Appellant argues that he was prevented from exploring a theory that L.J. might have been a homosexual and might have either resented males or resented being touched by males, which might have caused her to exaggerate about the incident in question. But appellant has not shown any connection between L.J.’s sexual orientation, which is not in the record,
In Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), the Supreme Court held that the Confrontation Clause required a defendant to be allowed to cross-examine a juvenile witness regarding his probationary status to show the witness’s possible concern that he might be a suspect in a robbery for which the defendant was later tried. Id. at 320, 94 S.Ct. 1105. In that case, a safe was stolen from a bar and found near the
In Hammer v. State, 296 S.W.3d 555 (Tex.Crim.App. 2009), the Court of Criminal Appeals found the trial court abused its discretion in excluding complainant’s medical records from a sexual-assault examination. The defendant was convicted of indecency with a child, his 15-year-old daughter, after the trial court excluded evidence to support the defendant’s “defensive theory ... that [the complainant] made up a tale of sexual molestation to get out from under the heavy hand of her father.” Id. at 558, 560, 566. The medical records showed she had told the examining nurse that a young man sexually assaulted her, which allegedly occurred one month after moving in with the defendant, her father. Id. at 559, 567. She had also told the nurse that she was particularly angry with her father, who wanted to prove that she had had sexual intercourse. Id. at 567. Another excluded witness was prepared to testify that the complainant said she did not want her dad to know that she was with someone else, so she falsely accused the young man of sexual assault. Id. She also told the nurse that at an earlier time, her uncle had sexually abused her in the very same manner as the defendant was later accused. Id. at 559. While the defendant was allowed to question his daughter generally about her motive to falsely accuse him, the jury did not know that she was particularly angry with him for taking her to the hospital for a sexual-assault exam. Id. at 566-67. She was so upset that she threatened to commit suicide and was admitted to a state hospital shortly afterward. Id. at 567. The sexual assault by the defendant was alleged to have occurred about a month after her release. Id. The Court of Criminal Appeals found that the trial court abused its discretion because there was nothing in the record that would support a finding that the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. Id., at 569.
In Vaughn v. State, 888 S.W.2d 62 (Tex.App.-Houston [1st Dist.] 1994), aff'd, 931 S.W.2d 564 (Tex.Crim.App. 1996), the court of appeals held that the trial court did not abuse its discretion in allowing the State to cross-examine a defense witness regarding her homosexual relationship with the defendant. Id. at 74-75. The relevance of this testimony was to show the witness’s bias toward the defendant due to the close nature of their relationship. Id. at 75. The court cited a number of cases involving evidence of a defendant’s relationship with a defense witness that was admissible
Each of the above cases shows a nexus between the witness’s testimony and motive to testify in a certain manner. Conversely, here, we see no connection between L.J.’s relationship with her female friend and any motive for her to exaggerate the incident between herself and appellant. See Smith, 352 S.W.3d at 64 (requiring nexus between witness’s testimony and witness’s potential motive to testify in favor of other party). As a matter of common sense, the nature of this relationship — which is unrelated to the incident— did not make L.J.’s account of the incident more or less probable. See Fox v. State, 283 S.W.3d 85, 92 (Tex.App.-Houston [14th Dist.] 2009, pet. ref'd) (acknowledging evidence of extraneous acts is admissible when “it tends in logic and common experience to serve some purpose other than character conformity to make the existence of a fact of any consequence more or less probable than it would be without the evidence.”).
Even assuming that L.J. were homosexual, a person’s sexual orientation, standing alone, has no bearing on his or her propensity for truthfulness. Chief Justice Oliver-Parrott’s concurrence in the Vaughn case is instructive. She wrote separately to explain “the unique reasons why the trial court in this particular case did not abuse its discretion in allowing this evidence of an appellant’s private sexual life.” Vaughn, 888 S.W.2d at 75 (Oliver-Parrott, C.J., concurring). As she noted, the evidence of the witness’s sexual orientation under the circumstances of that case served a purpose other than undermining the credibility of the witness, which was to show the romantic relationship between the defendant and the witness and thus the witness’s bias. Id. She elaborated that this should be the exceptional circumstance and not the rule: “In a case where the defendant’s sexuality is unrelated to the offense, the judge should presume that evidence of the defendant’s sexuality is irrelevant and not admissible.” Id.
Injecting evidence of a witness’s sexual orientation into trial under circumstances like those presented here would risk derailing the focus of the trial and putting the victim on trial.
Conclusion
Appellant did not preserve error regarding his sole issue, and even if he had done so, the trial court did not commit error. Accordingly, we overrule appellant’s issue on appeal. The judgment of the trial court is affirmed.
. Appellant asserts that L.J. told him she went to the nurse's office because she was “not feeling well,” but L.J. testified that she went to buy crackers, as the nurse sold crackers and juices to the students, and that she was feeling fine.
. Appellant disputes this version of events. He testified to the following. He had merely spoken with L.J. between classes. She told him that she was going to the nurse and then home because she was not feeling well. He then tapped L.J. on the shoulder and told her, “I hope you feel better,” and then he ran to make it to class on time.
. This videotape is not part of the appellate record and was not an exhibit at trial.
. Rule 401 defines "[r]elevant evidence” as that "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”
. The trial court did not allow appellant’s counsel to ask L.J. about her sexual orientation, but we note that L.J.'s testimony that she spent "all” or even a lot of her time with a female friend does not show that the two had a romantic relationship.
. Logan v. State, 698 S.W.2d 680, 682 (Tex.Crim.App. 1985); Daywood v. State, 157 Tex.Crim. 266, 273, 248 S.W.2d 479, 483-84 (1952); Denmark v. State, 95 Tex.Crim. 413, 254 S.W. 954 (1923); Sexton v. State, 48 Tex.Crim. 497, 88 S.W. 348, 349 (1905); Thompson v. State, 35 Tex.Crim. 511, 34 S.W. 629, 631 (1896); Crist v. State, 21 Tex.App. 361, 17 S.W. 260, 261 (1886).
. We also find the reasoning in Kvasnikoff v. State, 674 P.2d 302 (Alaska Ct.App. 1983) to be sound regarding this issue. In that case, the defendant, accused of rape, sought to show that the victim was homosexual and had engaged in other homosexual acts to show that the victim consented to sexual intercourse with him. Id. at 304. The court of appeals upheld the trial court's exclusion of this evidence, stating,
The trial judge in this case was understandably concerned that the main issue in the trial would become the sexuality of the victim rather than the conduct of the defendant on the occasion in question. In addition, the probative value of the evidence was diminished by the fact that none of it involved prior sexual conduct between [the victim] and the defendant. Rather it involved conduct between [the victim] and third persons.
. In a prosecution for sexual assault or aggravated sexual assault, ... reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.... [Ejvidence of specific instances of an alleged victim’s past sexual behavior is also not admissible, unless ... [among other things not pertinent here] it is
Tex.R. Evid. 412(a), (b)(2)(C).
. We also note that, under these circumstances, any de minimis probative value of that information would be substantially outweighed by the danger of unfair prejudice in putting L.J. on trial for her sexual orientation. See Tex.R. Evid. 403.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.