567 S.W.3d 359
Tex. App.2018Background
- Defendant Damian Merrick, owner of a volleyball club, was convicted of sexual assault of a child by oral contact and three counts of delivery of marijuana to minors; sentences run concurrently.
- Victim ("Elaine") was 16 when she became involved with Merrick; evidence at trial included multiple incidents of marijuana use provided by Merrick, a trip to Colorado where edible marijuana was purchased, and a sexual relationship culminating in alleged oral contact and digital penetration.
- A nurse examiner found genital warts (condyloma) on Elaine; testimony indicated HPV transmission could occur via oral sex, penile-vaginal, or anal contact, but digital transmission was unlikely.
- Delivery counts arose from a March 29, 2015 event where Merrick allegedly provided edible and smokable marijuana to Elaine, Mary, and Christy; witnesses described consuming and being affected by the substance.
- Defense proffered 216 social-media posts and other impeachment material (Elaine’s psychiatric diagnosis, initial refusal of sexual-assault exam, prior sexual history, and testimony from Holly about Elaine’s relationship with an adult trainer). The trial court excluded much of this evidence under the Texas Rules of Evidence (notably Rule 412) and hearsay rules.
- On appeal Merrick argued (1) insufficient evidence that the substance delivered was marijuana, and (2) constitutional violations (due process and Confrontation Clause) from exclusion of defensive/impeachment evidence; the court addressed sufficiency and preservation/forfeiture of constitutional claims.
Issues
| Issue | Merrick's Argument | State's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that delivered substance was marijuana | Testimony of lay recipients insufficient given modern synthetic cannabinoids; no chemical testing of the substance | Victim/witness lay testimony, corroborating facts (purchase in Colorado, prior familiarity with edibles, marijuana residue in Merrick’s car, internet searches), and corroborating witness testimony suffice | Affirmed: evidence sufficient under Jackson standard to support delivery convictions |
| Exclusion of 112 social-media posts (impeachment) | Posts would show motive to fabricate, lack of embarrassment, and drug impairment while testifying; due process and confrontation required admission | Posts largely post-date alleged offenses, contain Rule 412 sexualized material, and are more prejudicial than probative; objections were made under evidentiary rules (not constitutional) | Affirmed: defendant failed to preserve constitutional complaint because trial counsel argued only evidentiary grounds; exclusion not reversible on appeal |
| Exclusion of questioning about Elaine’s initial refusal of sexual-assault exam | Refusal showed motive to hide sexual activity from parents and impeached credibility | Questions implicated prior sexual history and Rule 412; admissibility was litigated on evidentiary grounds | Affirmed: constitutional objection not preserved; trial court ruled under Rule 412 and exclusion was preserved only as evidentiary ruling |
| Exclusion of evidence re: Elaine’s psychiatric diagnosis, prior sexual behavior, and Holly’s testimony about Elaine’s relationship with trainer | Diagnosis and past sexual behavior would impeach credibility and provide alternate source for warts; Holly’s testimony shows motive/bias | Admission would inject prejudicial, Rule 412-prohibited evidence and hearsay; much of the same facts were elicited through other testimony | Affirmed: constitutional objections forfeited for appeal; evidentiary rulings either not preserved or harmless because similar evidence admitted (e.g., Elaine’s testimony about trainer) |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (establishes standard for due-process sufficiency review)
- Jenkins v. State, 493 S.W.3d 583 (Texas application of sufficiency review principles)
- Roberts v. State, 9 S.W.3d 460 (lay testimony can support marijuana delivery conviction without chemical testing)
- Reyna v. State, 168 S.W.3d 173 (preservation requirement for appellate review of constitutional claims)
- Clark v. State, 365 S.W.3d 333 (trial court must be put on notice when a constitutional ruling is sought)