Robert D. Maxwell v. State
08-14-00027-CR
| Tex. App. | Oct 31, 2016Background
- Appellant Robert D. Maxwell, tried jointly in two causes, was convicted by a jury of multiple counts of indecency with a child involving complainants M.E. (stepdaughter) and H.S.; convictions affirmed on appeal.
- Alleged misconduct included repeated "parking lot" exposures/forced masturbation, pool incidents of groping over swimsuits, and "mudding" episodes; jury acquitted on some counts and convicted on others.
- Defense sought to introduce prior uninvestigated Nebraska allegation by M.E. (an earlier "sex talk" accusation against a relative) as impeachment evidence; trial court excluded it.
- Defense elicited testimony from a forensic interviewer (Ms. Kemp) that only about "two to three percent" of similar forensic interviews are false outcries; appellant later claimed counsel was ineffective for eliciting this evidence.
- Appellant also argued the trial court erred by not giving a specific unanimity instruction when the State presented multiple incidents supporting a single exposure count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of impeachment evidence (Nebraska allegation) | Excluding testimony about prior allegation deprived Maxwell of evidence showing M.E. had motive to fabricate | Evidence was inadmissible under Tex. R. Evid. 608(b); admission would confuse jury and low probative value | Trial court did not abuse discretion; exclusion affirmed (Lopez standard applied) |
| Ineffective assistance for eliciting expert testimony about class truthfulness | Counsel’s elicitation of Ms. Kemp’s "2–3% false outcry" figure was inadmissible and prejudicial | Defense trial strategy plausible (suggest custody-related false reports); record undeveloped so presumption of reasonable assistance applies | Claim fails Strickland first prong; no ineffective-assistance relief on direct appeal |
| Failure to give specific unanimity instruction | Generic unanimity instruction insufficient when State showed multiple incidents for one exposure count | General unanimity charge and trial context sufficient; no timely specific objection; no preserved error | Even if error, no egregious harm shown under Almanza/Cosio; conviction stands |
| Harmlessness / overall prejudice | Errors cumulatively undermined verdict | Jury credited complainant; evidence and arguments did not show actual harm | No reversible harm; convictions affirmed |
Key Cases Cited
- Lopez v. State, 18 S.W.3d 220 (Tex. Crim. App.) (no per se Rule 608(b) exception for sex-abuse cases; undeveloped/unproven prior allegations may be excluded)
- Billodeau v. State, 277 S.W.3d 34 (Tex. Crim. App.) (admission of prior false accusations may be required where probative and similar)
- Strickland v. Washington, 466 U.S. 668 (U.S.) (two-prong ineffective-assistance standard)
- Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App.) (unanimity requirement; jury must agree on a single incident when multiple acts are presented)
- Jourdan v. State, 428 S.W.3d 86 (Tex. Crim. App.) (jury must be unanimous as to every constituent element)
- Yount v. State, 872 S.W.2d 706 (Tex. Crim. App.) (expert opinion on witness truthfulness is inadmissible)
- Arrington v. State, 451 S.W.3d 834 (Tex. Crim. App.) (unanimity instruction and egregious-harm analysis)