Opinion
01-19-01009-CR
10-12-2021
LARRY LEE BARKER, Appellant v. THE STATE OF TEXAS, Appellee
Do not publish. Tex.R.App.P. 47.2(b).
On Appeal from the 208th District Court Harris County, Texas Trial Court Case No. 1463843
Panel consists of Justices Kelly, Guerra, and Farris.
MEMORANDUM OPINION
PETER KELLY JUSTICE.
Larry Lee Barker appeals his conviction for continuous sexual assault of a child for which he was sentenced to 25 years' imprisonment. Tex. Penal Code § 21.02. He argues that the trial court erred by excluding evidence that one of the complainants was sexually abused by her stepfather. We disagree and affirm.
Background
Barker was charged with continuous sexual assault of a child based on allegations that he committed indecency with a child by contact against two of his granddaughters, L.B. and G.A, between January 15, 2015 and February 15, 2015. Tex. Penal Code § 21.02. He proceeded to a jury trial in 2019.
At the time of the incidents, 9-year-old G.A. and 8-year-old L.B. lived with their mother. Two additional children lived with them: a girl, 6-year-old K.B., and a boy, 11-year-old T.B. Each of the children was related to the mother either as a biological child or as a stepchild. All of the children considered Barker to be their grandfather, and they all called him Papa Larry or Paw Larry. Barker was the biological father of L.B.'s father, Byron.
Barker lived in a one-bedroom apartment a few blocks away from his grandchildren. He had horses, and the children liked to go horseback riding and barrel racing on them. In 2014, Barker offered to help with childcare. He invited the siblings to take turns individually staying with him at his apartment. L.B. visited first, but each of the four children stayed with Barker eventually. All four grandchildren testified at trial.
1. G.A.'s testimony
G.A. testified that she stayed at Barker's apartment in January 2015 on a Friday night until Saturday. It was her first time staying with Barker alone. She played games on his laptop computer. When he asked if she would sit on his lap so he could watch her play the games, she complied. Barker hugged her from behind, slid his hands up her shirt, and touched her breasts. He continued for ten minutes before G.A. said that she was hungry for pizza. Barker ordered pizza, and when it arrived, they got in bed to watch television and eat.
After dinner, G.A. stated that she needed to take a shower. She set out clean clothes for after the shower and went to the bathroom. When she finished showering, she could not find her clothes. Barker gave her one of his t-shirts to wear. She put it on, along with her old underwear, and they continued to watch television until G.A. got tired. G.A. made a pallet on the couch in the living room, but Barker told her to come back to the bed to finish watching the show. She fell asleep in the bed underneath the covers.
In the middle of the night, G.A. woke up to Barker pulling down her underwear. She was too scared to fight, so she stayed still. Barker lifted G.A.'s leg, touched her vagina with his hands, and put his fingers inside her vagina. He also rubbed his penis on her vagina. Eventually, he tucked her back under the covers.
The next morning, Barker told G.A. that she needed to take another shower. When she asked why, he stated that he "got some stuff on her. While she was in the shower, her nose began to bleed. Barker brought her a towel, turned off the water, and told her that she had "such a nice body." He rubbed her arms and stomach.
G.A. got dressed and they went to the barn to feed Barker's horses. On the way, Barker told her that "what goes on at Paw Paw's house stays at Paw Paw's house." He threatened that he would hurt her and her family if she ever told anyone. During the ride, he also said, "It's kind of like a worm, isn't it? . . . Whenever it's hard, it's like that." After they fed the horses, Barker took G.A. home. She did not want to stay with Barker again, so when it came up, she pretended to be sick.
2. L.B.'s testimony
L.B. is two years younger than G.A. She testified that she began spending time alone with Barker when she was seven years old. Typically, they did fun activities, like baking, and L.B. slept in Barker's bed. L.B. went to Barker's apartment two or three times, and on each occasion, he touched her vagina in the shower and in the bed.
L.B. described the typical events that occurred when she spent the night at Barker's. When L.B. was showering, Barker sat naked on the side of the bathtub. He made L.B. sit on his leg, and he touched her vagina with his hand and made her touch his penis with her hand. After showering, L.B. put on one of Barker's t-shirts and her own underwear.
When they got in bed, Barker made L.B. watch movies that were inappropriate for her age, including people "having sex and getting naked." In the middle of the night, L.B. woke up with Barker touching her from behind. He laid behind her, as if he were giving her a hug with his entire body. He touched or rubbed her vagina while making noises. She told him to stop, but he did not. Most of the time, he stopped when she pushed him away or yelled at him.
The morning after she spent the night, Barker would take her to breakfast or to buy a toy before taking her home. Barker told her that if she told anyone about it, he would "beat the living crap" out of her. She returned to the apartment on multiple occasions so that her sisters did not have to go.
On cross-examination, L.B. testified that another adult man also had touched her vagina. Barker was not present when the other man touched her. L.B. testified that the circumstances of the abuse were different. Unlike Barker, the other man did not go into the shower with her. L.B. disclosed to her mother that both Barker and the other man had inappropriately touched her, and she told her mother that the other man had touched her before the incidents at Barker's began.
3. H.B.'s testimony
H.B. was six years old when she spent the night with Barker. She testified that she stayed at his apartment with him alone on more than one occasion. When she went to his apartment, she played games on the computer, watched television shows, and took baths with Barker. While they were in the bathtub, she would try to scoot forward, but Barker would pull her back towards him. She did not bring clothes with her. After the bath, she wore one of Barker's t-shirts. He touched her bottom and put his hands under her shirt. He told her not to tell anyone what had happened.
4. T.B.'s testimony
T.B. testified that he is the biological grandson of Barker. He spent the night with Barker alone on a few occasions. When he stayed over, T.B. slept on the couch recliner, not in Barker's bed. Barker never bathed him. On one occasion, Barker took T.B. to the stables. While they were waiting in the truck, Barker told T.B. that whatever he showed him in the truck would stay between them. He then showed T.B. photographs of a woman's naked breasts and bottom.
5. Additional Witnesses
Another witness testified that when she was 14 years old, Barker saw her at the horse stables. He told her that he had a dream that she was sitting on his face. It made her uncomfortable, and she only told her best friend that it had happened.
G.A.'s mother, who is also H.B.'s stepmother, testified that in February 2019, she asked the children whether they had any secrets from her. They described abuse by Barker. She immediately called the police. Sexual assault examinations did not reveal any physical injuries to their genitals, but the investigator testified that physical injuries were not expected due to the passage of time.
Barker testified at trial that he used a washcloth to bathe the girls and that he "wasn't trying to penetrate them." He thought it was acceptable to bathe a female child until she was 10 or 11 years old, but he did not bathe T.B. According to Barker, he did not bathe T.B. because "I mean, just man-on-man. I just-I can't do that." He testified that he did not sexually abuse the girls and that another man sexually abused both G.A. and L.B.
The jury found Barker guilty of continuous sexual abuse of a child, and the trial court assessed punishment at 25 years' imprisonment.
Evidentiary Exclusions
On appeal, Barker asserts that evidence that G.A. had been sexually assaulted by her stepfather should have been admitted as an exception to the rule that specific instances of a victim's past sexual behavior are inadmissible. See Tex. R. Evid. 412. G.A.'s stepfather is Barker's son, Byron. Under rule 412, evidence of a victim's previous sexual conduct is inadmissible unless the conduct falls within a specified category of material evidence and is more probative than prejudicial. Id. Barker contends that the evidence meets an exception to rule 412. Specifically, he argues that the evidence was admissible because it related to G.A.'s motive or bias, see Tex. R. Evid. 412(b)(2)(C), and because it is constitutionally required to be admitted, see Tex. R. Evid. 412 (b)(2)(E).
After the jury was impaneled but before testimony began, the trial court held an in-camera hearing, as required by rule 412, regarding whether evidence that G.A. had been sexually abused by Barker's son Byron was admissible. During the hearing, G.A. testified that Byron was her stepfather. She had known Byron since she was two years old and had lived with him beginning when she was about four or five years old. She testified that Byron began touching her inappropriately when she was in the first grade. She testified that she slept on a top bunk bed while her sister slept below her. On many occasions, Byron came into her room, stood on the bottom bunk, reached into the top bunk and touched her vagina. The abuse continued until she was in the fourth grade.
On Valentine's Day in 2015, Byron came in her room while she was asleep. G.A. was half awake when her mother started yelling at Byron that he had no business being in her room. The next morning, when asked, G.A. started crying and told her mother about the abuse by Byron.
G.A. testified that Barker also touched her inappropriately. In January 2015, Barker touched her breasts while she was sitting on his lap playing a computer game. Later, Barker insisted that she sleep in his bed. In the middle of the night, he pulled down her underwear and touched her vagina with his hands. Then, he rubbed his penis on her vagina. The next morning, Barker told G.A. that she needed to shower because he "got some stuff on her the night before. While G.A. was showering, she had a nosebleed. Barker came into the shower, touched her body, and told her that she had a nice body. When he took her home, he told her that what happens at his house stays at his house. G.A. described the manner in which Barker touched her breasts, and also testified that Barker took photographs of her back side.
G.A. testified that the two situations of abuse were different. Byron touched her inappropriately in her own home, and Barker touched her at his apartment. Byron touched her repeatedly over a four-year period, but Barker touched her during one incident at his house. Byron did not put his penis in her vagina, and he did not ejaculate. She did not remember if Byron touched her breasts, but she remembered the specific manner in which Barker did so. When Byron touched her, he was always standing over her while she was in her own bed. When Barker touched her, they were in his bed at his apartment. She testified that Barker put his fingers farther inside her vagina than Byron did. She also testified that she did not remember Byron ever taking her photograph. She testified that she could not forget the night she stayed with Barker because she had been so scared. The trial court ruled that evidence that G.A. had been sexually abused by Byron was inadmissible because the two incidents were not substantially similar, and the evidence was more prejudicial than probative.
Before his testimony, Barker complained that he was not allowed to testify that another perpetrator sexually assaulted G.A. and L.B. He wanted to name the perpetrator. The trial court ruled that he could say that he knew someone else had sexually abused the children, but he was not allowed to testify to the name of the person. Barker then testified accordingly.
A. Standard of Review
We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). An abuse of discretion does not occur unless the trial court acts "arbitrarily or unreasonably" or "without reference to any guiding rules and principles." State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (op. on reh'g)). We may not reverse the trial court's ruling unless the determination "falls outside the zone of reasonable disagreement." Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016). An evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case. Henley, 493 S.W.3d at 93.
B. Analysis
Rule 412, the "rape shield" provision, is primarily a rule of exclusion that applies in any prosecution for "sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault." Tex. R. Evid. 412(a). Under the rule, specific instances of a complainant's past sexual behavior are inadmissible, with limited exceptions. See id. (a)(2), (b)(2). Even if the proponent of the evidence of past sexual conduct can satisfy his burden to demonstrate its relevance and an applicable exception under rule 412, the evidence of specific instances of past sexual behavior must still be excluded unless the probative value of the evidence outweighs the danger of unfair prejudice. Tex. R. Evid. 412(b)(3). Unlike Rule 403 of the Texas Rules of Evidence, which presumes relevant evidence admissible even if it has some potential to be unfairly prejudicial, under rule 412, the defendant must show that the probative value of the evidence outweighs its unfairly prejudicial effect. Compare Montgomery, 810 S.W.2d at 389 ("Rule 403 favors admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial") with Robisheaux v. State, 483 S.W.3d 205, 223-24 (Tex. App.- Austin 2016, pet. ref d) (noting that rule 412 balancing test is more stringent than rule 403 balancing and weighs against admissibility).
The particular rule 412 exceptions at issue in this case involve the admissibility of specific instances of past sexual behavior if the evidence "relates to the victim's motive or bias," see Tex. R. Evid. 412(b)(2)(C), or "is constitutionally required to be admitted," see Tex. R. Evid. 412(b)(2)(E). The proponent of challenged evidence generally has the burden of establishing its admissibility by a preponderance of the evidence. White v. State, 549 S.W.3d 146, 151-52 (Tex. Crim. App. 2018); Pierson v. State, 426 S.W.3d 763, 770 (Tex. Crim. App. 2014). Therefore, it was Barker's burden to demonstrate the admissibility of evidence that G.A.'s stepfather, Barker's son Byron, sexually abused her.
1. Preservation of Error
Preliminarily, we agree with the State that Barker did not preserve his complaint that the trial court erred by excluding the evidence because it violated his confrontation and due process rights. During the court's rule 412 hearing, Barker argued that the evidence was admissible only for G.A.'s motive or bias. See Tex. R. Evid. 412(b)(2)(C). He did not argue that the evidence was constitutionally required to be admitted under rule 412 (b)(2)(E). It is well established that an issue raised on appeal must be the same issue raised by the objection asserted at trial. Tex.R.App.P. 33.1(a); see Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999) (holding nothing preserved for review if objection at trial does not comport with issue on appeal). The defendant's objection must "'let the trial judge know what he wants, why he thinks himself entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.'" Thomas v. State, 408 S.W.3d 877, 844 (Tex. Crim. App. 2013) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). We agree with the State that Barker failed to preserve any error regarding admission of the evidence for constitutional reasons. See Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005) (holding specific Confrontation Clause objection to trial court's exclusion of evidence under rule 412 required to preserve complaint for appeal). We overrule Barker's issue related to admission of the evidence under rule 412 (b)(2)(E).
2. Motive or Bias Exception to Rule 412
Under the "motive or bias" exception, Barker had the burden to establish that the evidence of sexual abuse by Byron related to G.A.'s motive or bias to falsely accuse Barker, that it was probative on the issue of G.A.'s motive or bias to make the false allegations of sexual assault, and that it was more probative than unfairly prejudicial. Tex. R. Evid. 412(b)(2)(C), b(3). When the defendant seeks to admit evidence of past sexual behavior because it relates to the complainant's motive or bias, the defendant must "demonstrate a definite and logical link between the complainant's past sexual conduct and the alleged motive and bias." Stephens v. State, 978 S.W.2d 728, 735 (Tex. App.-Austin 1998, pet. ref'd); see also Todd v. State, 242 S.W.3d 126, 129 (Tex. App.-Texarkana 2007, pet. ref'd).
There is no evidence in the record to link the fact that she was sexually assaulted by Byron to any motive to lie. See Hale v. State, 140 S.W.3d 381, 395-96 (Tex. App.-Fort Worth 2004, pet. ref'd) (concluding no abuse of discretion in excluding evidence of past sexual behavior when there was "[n]o evidence in the record, or offered outside the jury's presence, suggest[ing] the boys were biased or motivated to lie about the assault."). There is no evidence that G.A. confused the two situations where she had been sexually abused. At the in-camera hearing, she testified that Byron abused her in her own bed, while standing over her, whereas Barker abused her when she spent the night at his house. Bryon touched her multiple times over a four-year period, whereas Barker only touched her during an overnight visit to his apartment in 2015.
On appeal, Barker contends that the evidence was necessary to show an alternative source of G.A.'s sexual knowledge as part of an alternative perpetrator theory. But G.A.'s source of sexual knowledge was never at issue during trial. Neither side questioned how GA. could have known about sexual matters. The previous sexual assault did not involve Barker, and Barker has failed to show in what way the previous assault shows G.A.'s motive or bias, if any. See Woods v. State, 301 S.W.3d 327, 334-35 (Tex. App.-Houston [14th Dist] 2009, no pet.) (trial court did not err in excluding evidence of complainant's previous sexual conduct when defendant failed to show in what way the previous assault showed complainant's motive or bias). The trial court did not abuse its discretion in excluding evidence that GA. had been abused by Byron under rule 412. We overrule Barker's issue related to admission of prior sexual assault evidence under rule 412(b)(2)(C).
3. Admissibility under Rules 401 and 403
G.A.'s prior sexual assault was also inadmissible under evidence rules 401 and 403. Generally, only relevant evidence is admissible. See Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003). Relevant evidence means evidence 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. Tex. R. Evid. 401. Barker claims that the extraneous evidence was relevant to show an alternate perpetrator. But whether G.A. was also sexually abused by Byron was not compelling evidence to make a fact of consequence more or less probable. The record does not reflect that the prior sexual abuse by Byron made the possibility of an alternative perpetrator for the January 2015 incident more or less probable. The record reflects that the abuse by Barker occurred in his apartment. The abuse by Byron occurred in G.A.'s own bedroom. G.A. also testified that the extent to which Byron touched her vagina was less than the extent to which Barker did so. The challenged evidence has little probative value.
Barker argues that Texas Rule of Evidence 412, which prohibits admission of evidence of a complainant's prior sexual conduct "in a prosecution for sexual assault, aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault" is not applicable because the crime for which he was tried, continuous sexual assault, is not specifically enumerated. See Tex. R. Evid. 412(a). Even if rule 412 is not applicable, we must affirm the trial court's ruling if it is supported under any theory of law. See Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007).
The probative value, if any, is also substantially outweighed by its prejudicial effect. See Tex. R. Evid. 403. In determining whether the prejudicial effect of evidence substantially outweighs its probative value under rule 403, we consider (1) how compellingly evidence of the extraneous act serves to make a fact of consequence more or less probable; (2) the extraneous act's potential to impress the jury in some irrational but indelible way; (3) the trial time that the proponent will require to develop evidence of the extraneous misconduct; and (4) the proponent's need for the extraneous transaction evidence. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). As explained above, G.A.'s extraneous acts were not compelling evidence to make a fact of consequence more or less probable. The evidence also had the potential to impress the jury in an irrational and indelible way. The jury could have thought that it was impossible that the same child could be sexually assaulted by two different men and given G.A.'s testimony less weight. The jury also could have believed that she was so traumatized that she could not tell the truth. Finally, Barker did not establish a need for the evidence. He claims that it was necessary as a source of G.A.'s sexual knowledge. But her sexual knowledge was not at issue. Weighing the relevant factors, we hold that the probative value of the evidence of G.A.'s sexual history was substantially outweighed by the prejudicial effect of the evidence. See Tex. R. Evid. 403; Wheeler, 67 S.W.3d at 888. The trial court did not abuse its discretion in excluding the evidence.
We overrule Barker's three issues on appeal.
Conclusion
We affirm the judgment of the trial court.