Lead Opinion
Appellant, Dennis Hood, appeals his conviction for aggravated sexual assault. Through three points of error, he asks whether the trial court reversibly erred in 1) refusing to admit a copy of his travel log indicating his location on the date of the assault, 2) refusing to permit admission of testimony regаrding a specific instance of the
Background
The State indicted appellant for сommitting aggravated sexual assault upon L.L.S.R., a female of thirteen years. At trial, L.L.S.R. testified that appellant was dating her cousin at the time. Furthermore, her cousin lived with L.L.S.R. and the latter’s mother. Thus, L.L.S.R. knew appellant.
On the day in question, July 16, 1994, appellant allegedly entered L.L.S.R.’s home while she was alone. He approached and touched her breasts. She then moved away and entered her own room. Appellant allegedly followed and directed her to remove her clothing. She refused. Thereafter, he purportedly “ripped” her shirt off, pulled down her shorts, pushed her onto a bed, “gоt on top of’ her, and inserted his penis into her vagina. No one was told of the assault until October of 1994.
Though appellant testified and denied the charge, the jury apparently believed L.L.S.R. Thus, it found him guilty and assessed punishment at 66 years imprisonment.
Point of Error Two
In his second point of error, appellant argues that the court erred in refusing him permission to question Becky O’Neill, a registered nurse who examined the complainant, about a prior instance of sexual intercourse involving L.L.S.R.
Nevertheless, opportunity was given appellant to “make a record” of the witness’ proposed testimony outsidе the presence of the jury. While pursuing that chance, he queried: “[d]id you ask her when the last time she had intercourse was?” O’Neill replied: “I remember [L.L.S.R.] telling me possibly back in 1993, she said she thought that she had.” So too did the witness concede that the prior instance of sexual intercourse could havе caused the tears she discovered.
Standard of Review
Whether to admit a particular piece of evidence is a matter which lies within the trial court’s considered discretion. Moreover, we will not interfere with the exercise of that discretion unless we find it to have been abused. And, that occurs when the triаl court so deviates from applicable guidelines and principles that its decision falls outside the zone of reasonable disagreement. Montgomery v. State,
Next, since the controversy at bar entails Texas Rule of Criminal Evidence 412(b), we turn to that rule to determine the pertinent guidelines. Therein, it is stated that:
*746 [i]n а prosecution for ... aggravated sexual assault ... evidence of specific instances of an alleged victim’s past sexual behavior is ... not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of the rule;
(2) it is evidence (A) that is necessary to rebut or explain scientific or medical evidence offered by the state; (B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged; (C) that relates to the motive or bias of the alleged victim; (D) is admissible under Rule 609; or (E) that is constitutionally required to be admitted; and,
(3) its probative value outweighs the danger of unfair prejudice.
Simply put, if the evidence falls within any of the exceptions itemized in Rule 412(b)(2) and its probative value outweighs the danger of unfair prеjudice, it is admissible. Boyle v. State,
Application of Standard to Circumstances at Bar
Appellant informed the trial court that he desired to use the evidence of prior sexual behavior to “explain” the “well-healed” tears found in L.L.S.R.’s hymen. More importantly, paragraph (b)(2)(A) of Rule 412 expressly permits use of the evidence for such a purpose. Reynolds v. State,
Finally, the situation at bar is quite akin to that described in Reynolds. In both eases, the defendant desired to present evidence of specific instances оf prior sexual conduct. Reynolds v. State,
In holding as we do, we do not ignore the State’s belief that “[i]t was incumbent upon appellant to establish through [L.L.S.R.] the exact nature of her prior sexual behavior to determine whether it was of such a nature that it would have produced the genital tears found.” Yet, no authority was cited for the State’s implicit proposition that only the victim can testify to prior instances of sexual conduct. Moreover, we know of no such rule. Indeed, it is conceivable that such evidence could be proffered through the medical practitioners who examined the victim. O’Neill herself agreed that history of prior sexual activity is “important” to those examining a victim of sexual assault, and the data imparted by the victim сould be admissible under Texas Rule of Criminal Evidence 803(4). The latter permits use of a victim’s statements made to medical personnel for purposes of diagnosis or treatment. See, e.g., Torres v. State,
Additionally, in prohibiting appellant from developing the evidence through O’Neill, it is quite reasonable to assume that the сourt would have also refused him opportunity to propound similar questions to L.L.S.R. And, given that the issue was presented and preserved through O’Neill, we see little reason for requiring appellant to journey with another witness down a path which was already judicially blocked.
In sum, the trial court decision fаiled to comport with applicable guidelines and fell outside the zone of reasonable disagreement. Thus, it constituted a harmful instance of abused discretion.
Points of Error One and Three
Reaching the conclusion that we do vis-a-vis Point Two obviates our need to address the remaining points of error. However, since questions regarding the use of copiеs in lieu of original exhibits (the substance of Point One) may arise at the new trial, we note that Texas Rule of Criminal Evidence 1003 authorizes the use of copies to the same extent as originals. This is so -unless one questions their authenticity or illustrates that it would be unfair to admit the duplicates. Tex.R.CRIM. Evid. 1003. And, since the rule mentions nothing about requiring proof that the originals are unavailable, we decline the State’s invitation to read such into it.
Indeed, accepting the State’s invitation would be tantamount to converting 1003 into nothing more than the common law “best evidence rule.” But, that would contradict the purpose underlying 1003 since the latter was enacted “as an exception to the best evidence rule.” 6 J. Weinstein & M. Berger, Weinstein’s Federal Evidence § 1003.02[1] (2d ed 1997).
We reverse the judgment and remand the cause for further proceedings.
Notes
. Appellant initially contended that the State had "opened the door" to such testimony since it commented that L.L.S.R. was pregnant at the time of trial. The trial court disagreed. Nevertheless, appellant was given leeway to examine her about the pregnancy and the baby’s father. During same, L.L.S.R. admitted that appellant was not its father.
. In Reynolds, the court exсluded the matter because " '[t]he kid is not old enough.’ ” Reynolds v. State,
. Though we are unable to readily think of a situation wherein age would be a factor, we stop short of concluding that age can never be considered in balancing the probative value of the evidence against its prejudicial effect.
. The Reynolds court determined that harm was present since the evidence tended to refute the allegations of the State and explain the presence of the trauma. Reynolds v. State,
.Though the treatise cited dealt with the Federal counterpart to Texas Rule of Criminal Evidence 1003, the former is identical to the latter. Given this, it is quite reasonable to use information regarding the former as guidelines for interpreting the latter.
Concurrence Opinion
concurring.
Concurring with the rationale expressed in the majority opinion for sustaining appellant Dennis Hood’s second point оf error, which requires a reversal and remand, I would also sustain, as another reason for the reversal and remand, appellant’s first point of error. By that point, he contends the trial court erred in refusing to admit into evidence copies of the log sheets he made in his employment as а truck driver.
Appellant was charged with the offense of aggravated sexual assault, alleged to have occurred in Amarillo, Potter County, on or about the 12th day of July, 1994. Although the complainant testified that she did not remember, and had not told anyone, the date in July the alleged offense occurred, she fixed the date as the 16th day of July, 1994 in a statement she made in another hearing. When appellant, employed as a truck driver who was was required to fill out log sheets each day, offered copies of the log sheets he had made at the time the complainant said the offense occurred to evince he was not then in Amarillo, the State objected because they were not the originals. The court sustained the objection, thereby excluding the evidence.
On appeal, the State’s justification for the exclusion is the best evidence rule, i.e., the original must be produced or its absence explained, as articulated in Ortiz v. State,
The copies of the log sheets, bearing on the question whether appellant was present at the scene of the alleged offense, were an essential component of his plea of not guilty. In my view of the record, the exclusion of the evidence not only might possibly have prejudiced the jurors’ decision-making process, but was of such magnitude that it disrupted the jurors’ orderly evaluation of the evidence. Harris v. State,
Accordingly, I would also sustain appellant’s second point of error as a reason to reverse the judgment and remand the cause to the trial court.