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Golliday v. State

Court of Appeals of Texas, Second District, Fort Worth

July 27, 2017

JOSHUA GOLLIDAY APPELLANT
v.
THE STATE OF TEXAS STATE

         FROM THE 371ST DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1379815D

         EN BANC

          OPINION ON THE STATE'S MOTION FOR EN BANC [1] RECONSIDERATION

          LEE ANN DAUPHINOT JUSTICE

         After the majority of a panel of this court issued an opinion reversing the trial court's judgment of conviction, the State filed a motion for rehearing en banc. We granted the State's motion and ordered resubmission of the appeal without oral argument. After considering the arguments presented by the parties upon the original submission of this appeal, we withdraw our opinion and judgment dated October 13, 2016 and substitute the following.

         A jury convicted Appellant Joshua Golliday of sexual assault, charged in a single-count indictment and alleged to have occurred on or about January 5, 2013. The jury assessed his punishment at two years' confinement and recommended that imposition of sentence be suspended and that Appellant be placed on community supervision. The trial court sentenced Appellant accordingly, assessing a seven-year term of community supervision. Appellant brings five points on appeal, challenging the trial court's limitations on his cross-examination and on his ability to present character evidence and contending that the State's argument constituted a comment on his silence and that the cumulative effect of trial errors was harmful. Because we hold that the trial court erroneously limited Appellant's right to present his defense, we sustain his first two points, reverse the trial court's judgment, and remand this cause to the trial court.

         Factual and Procedural Background

         Complainant is a woman who lived at The Depot apartment complex in downtown Fort Worth. She testified that her apartment, number 333, was on the second floor; later she testified that she did not remember whether her apartment was on the second or third floor, but she thought it might be on the third.

          Complainant was involved in a car wreck on January 4, 2013, and although she was not injured, she lost the use of her car. When she returned to her apartment, she began to drink alcohol and planned to continue drinking both in her apartment and during an evening out. She went out alone in downtown Fort Worth to Dirty Murphy's, not to socialize or to have a good time, but just to drink beer and wine. She returned to her apartment after midnight, changed into her pajamas, continued to drink wine, and started watching a movie. She described herself as intoxicated.

         Complainant went out into the hallway to smoke, and she found neighbors smoking and drinking, so she stayed outside smoking and talking to them. Complainant testified that she had run out of cigarettes and had "needed to bum one, " but she could not remember at trial whether anyone gave her a cigarette. She did remember that she asked Appellant, who was in the group smoking outside her apartment, to take her to the store to buy cigarettes. Complainant testified that she was then wearing black pajama pants, a long-sleeve black pajama shirt, panties, and no bra.

         At the convenience store, Complainant bought cigarettes and wanted to rent a movie. At trial, she did not remember whether Appellant went into the store or stayed in the vehicle. She also testified that there was some flirting going on. When they returned to the Depot, Complainant invited Appellant into her apartment to watch the movie with her, and she testified that she made herself a drink and thought she made him a drink. While they watched the movie, Complainant and Appellant began kissing consensually. In response to the prosecution's questioning, Complainant responded, "Things progressively happen[ed]. I don't-I don't remember everything exactly." Although she remembered Appellant's trying to touch her, she did not remember where he tried to touch her. She did remember that she was not okay with it and asked Appellant to leave. She testified that he responded, '"I took you to the store, ' like [she] owed him." "I don't know, " she further stated to the jury.

         Complainant testified that when she told Appellant to leave, he grabbed her arms, turned her around, and pulled her pajama pants and panties off. When the prosecution asked her if she said anything to him, she replied, "I don't remember what I said. I just heard screaming in my head." She testified that he held her down and raped her. At trial, she testified that Appellant ejaculated, although she had told the detective investigating the incident that she was unsure whether Appellant ejaculated. She testified that she did not remember what she had told the detective. She also testified that after he raped her, Appellant ran out the front door, to the left and onto the parking lot. She had previously testified that she believed her apartment was on the third floor. Complainant testified that she put on her pajama pants, grabbed her phone, followed Appellant out onto the parking lot, and called 911.

         When the defense asked Complainant on cross-examination whether she had been talking to someone on her cell phone in the stairwell before meeting up with her neighbors, she replied, "Possibly." She conceded that it was possible that she had told the police that she had been in the stairwell talking on her cell phone but said that she did not "remember." She also admitted that it was possible that the people in the hall had come into her apartment but denied remembering whether they had. The defense asked her more than once whether she spoke in person to anyone other than Appellant and his friends. She denied she had but also testified, "Not that I remember." Although she denied remembering what she and Appellant had talked about, she admitted that he had told her that he was from San Diego. On cross-examination, the defense asked Complainant whether she had initiated the kissing. She denied having a memory of it but conceded that it was "[a]bsolutely" possible that she had initiated the kissing.

         The defense began inquiring how Complainant had reached the hospital for the sexual assault examination. She testified that she had been taken by ambulance and that her friend Ryan Bradshaw had brought her home. But the trial court did not allow Appellant to inquire about Complainant's relationship with Bradshaw. Complainant denied that Bradshaw had been in her apartment earlier that day but admitted that he had likely driven her from her apartment to the police department for her interview with the investigating detective. Later she admitted that Bradshaw had in fact come to her apartment to take her to the police department because she had called him. Complainant admitted that Bradshaw had come into the interview room when the detective stepped out. She also admitted that he had stayed in the room with her for fifteen minutes and consoled her. The defense attempted to ask Complainant exactly how Bradshaw had comforted her, but the trial court would not allow the questions and sustained the State's objections.

         The defense then attempted to further clarify the events of the evening, asking whether Complainant had actually been in the hallway arguing with Bradshaw the evening she claimed she had gone into the hallway to smoke. Again, her testimony waffled, and she testified, "I honestly don't remember all the details of that day." In response to this admission, the defense asked, "Is it possible that Ryan was at your apartment and the two of you were arguing before these four guys [Appellant and his friends] got involved?" Complainant replied, "I guess it could be possible." Complainant also admitted she did not remember what she had told the investigating detective or what she had told the examining nurse about whether Appellant had ejaculated or where he had tried to touch her.

         Outside the presence of the jury, the defense inquired about Complainant's statements that she made to treatment providers while she was a patient at Millwood, a substance abuse treatment facility that provided Complainant both out-patient and in-patient treatment after the alleged assault. The defense also asked Complainant about statements she made to the sexual assault nurse examiner (SANE) who performed her sexual assault examination. The defense attempted to elicit testimony that Complainant had said . that she had not accepted the fact that she was raped;

. that she was a love addict;
. that she had previously accused a friend's husband of assaulting her; . that she had herpes; and
. that she was mixing Zoloft with alcohol on the night in question.

         Complainant testified outside the presence of the jury while the defense was making its proffer,

Q. . . . And you also know you're not supposed to take alcohol with Zoloft; is that correct?
A. I'm a recovering alcoholic. I drink alcohol with everything.

         The prosecution objected that the proffered testimony was hearsay, not relevant to the elements of the case, and inadmissible under evidentiary rule 404. The defense argued that the evidence was relevant and admissible so the jury "c[ould] get the whole picture of the situation." The visiting judge sustained the prosecution's objections. The defense then asked if, without mentioning Millwood, it could at least ask Complainant whether she had stated that she had not completely accepted the fact that she had been raped. The judge again sustained the prosecution's hearsay objection. The defense pointed out that the witness's statement was admissible, but the trial court again sustained the objection. The defense then asked if all the matters covered by the proffer would be excluded and the judge stated that they would be. The defense excepted to the ruling.

          Before the jury, the defense asked Complainant whether she had testified she did not scream out when the alleged assault was occurring. She corrected counsel, stating, "No, I did not say that. I said I don't remember screaming. All I can hear is screaming in my head." She admitted that she did not remember "a lot of details."

         Denial of Appellant's Right to Present His Defense

         This is a traditional "he said, she said" case, a swearing match between Appellant and Complainant. The issue of sexual intercourse was uncontested. The only contested issue was consent. Appellant's defense was not promiscuity. It was that the sexual activity was consensual. At the very least, the defense was that a reasonable person would have believed the sexual activity was consensual. The excluded testimony was offered to show Complainant's inability to recall the events and to explain her conduct on the night of the alleged assault.

         The Issues

         In his first two points, Appellant argues that the trial court abused its discretion and erred by limiting his cross-examination of Complainant and the SANE, violating his constitutional rights to due process and confrontation. Within the discussion of his points, he also contends that the trial court's error violated his constitutional right to present his defense.

          Preservation

         The State argues that Appellant's first and second issues are "improperly presented" and not preserved and, that, consequently, this court should not consider them. We disagree.

         Both the State and the conscientious dissent confuse the requirements for preserving a complaint that evidence was improperly excluded with the requirements for preserving a complaint that evidence was improperly admitted. The dissent relies on Vasquez v. State, [2] a case addressing preservation of error when evidence is improperly admitted, for the requirements for preserving error when evidence is improperly excluded. Respectfully, the dissent's contention that objection is required to preserve a complaint that evidence is improperly excluded is incorrect.

         Rule 103 of the rules of evidence establishes the distinctly different modes of preserving error in the admission of and in the exclusion of evidence:

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.[3]

         When evidence is improperly admitted, objection is required to preserve the complaint.[4] When evidence is improperly excluded, no objection is required, but a proper offer of proof is required.[5] As the Holmes court has explained,

This court has recognized a distinction between the general rule in Rule 103(a)(2) and the case in which the defendant is not permitted to question a State's witness about matters that might affect the witness's credibility.
In the latter case, the defendant need not show what his cross-examination of the witness would have affirmatively established; he must merely establish what general subject matter he desired to examine the witness about during his cross-examination and, if challenged, show on the record why such should be admitted into evidence. In such a case the trial court's ruling has prevented a defendant from questioning a State's witness about subject matters which affect the witness's credibility, that is, matters which might show malice, ill feeling, ill will, bias, prejudice, or animus.[6]

         Appellant did exactly what he was supposed to do. He told the trial court clearly what evidence he wanted the jury to hear, the prosecution objected, and the trial court sustained the objections, thereby holding that Appellant could not present his impeachment evidence before the jury. He therefore preserved his complaints about the exclusion of evidence.

         Appellant also preserved his related constitutional complaints. Both criminal and civil courts in Texas have long recognized that our trials are not silly games of "Mother, may I?"[7] "[A] party need not spout magic words . . . to preserve an issue as long as the basis of his complaint is evident to the trial court."[8] "Straightforward communication in plain English will always suffice."[9]Appellant made clear to the trial court that his defense was grounded in the evidence he sought to elicit in the cross-examinations he was blocked from presenting to the jury. That is, Appellant effectively communicated to the trial court that the complained-of rulings denied him the right to present his defense and prevented him from telling the jury "the rest of the story" so they "c[ould] get the whole picture." We therefore hold that Appellant preserved his points at trial.

         Adequate Briefing

         Appellant likewise makes clear to this court what his complaints are. His stated points explicitly raise issues of confrontation, cross-examination, and due process. He also quotes and emphasizes an excerpt from the Texas Court of Criminal Appeals's Hammer opinion, written by Judge Cochran for a unanimous court, and then relies on it in raising his complaint about the trial court's denying him the right to present his defense:

[T]he constitution is offended if the state evidentiary rule would prohibit him from cross-examining a witness concerning possible motives, bias, and prejudice to such an extent that he could not ...

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