TOMAS LEVAR HILLIARD v. STATE OF TEXAS (2011)

TOMAS LEVAR HILLIARD v. STATE OF TEXAS (2011)

Docket No: No. 10–03–00134–CR, 2004 WL 2567112, at *3 (Tex.App.—Waco Nov. 10, 2004, pet. ref'd) (mem. op., not designated for publication).  We agree with the rationale of our sister courts and hold that the trial court did not err by refusing to hold a Michaels hearing.  Appellant was free to cross-examine the victim and those who interviewed her to challenge the reliability of the victim's recollection and the propriety of the investigative procedures used.  And, the jury was free to judge the credibility of the witnesses.  Appellant's first issue is overruled.  In his second issue, appellant asserts that the trial court unduly limited his right to confront the witnesses by refusing to allow appellant to introduce evidence that the victim had made a false allegation of sexual misconduct against her cousin.  Outside the presence of the jury, the victim denied making any such allegation against her cousin.  Also outside the presence of the jury, the victim's cousin testified that the victim had falsely accused him of raping her.  Appellant relies on the Confrontation Clause of the Sixth Amendment to the United States Constitution, which guarantees an accused the right to confront the witnesses against him.  The exclusion of evidence involving a prior false accusation of sexual activity, when offered – as it was in this case – to attack the victim's general credibility, does not violate the Confrontation Clause.  Hammer v. State, 296 S.W.3d 555, 564–65 (Tex.Crim.App.2009).  The court in Hammer held that such evidence may be admissible if offered for some purpose, such as motive or bias, other than a propensity attack upon the witness's general character for truthfulness.  Id. at 565.  In this case, appellant offered the evidence to show that the victim “in the past has made a false accusation․  It allows the jury to consider the possibility that this particular accusation may be false.”  Appellant further stated that, if the jurors were to believe the victim's cousin, “then they could possibly believe that [the victim] has made another false outcry.”  The proffered testimony was not offered to show the victim's bias or motive but, rather, was offered to attack the victim's credibility by showing merely that she had made another allegation of sexual misconduct (which she denied making) and that the allegation was false.  We hold that, pursuant to the rationale in Hammer, appellant's right of confrontation was not violated and that the trial court did not err in refusing to allow the proffered testimony.  See Tex.R. Evid. 608(b);  Hammer, 296 S.W.3d at 564–66.  The second issue is overruled.  The judgments of the trial court are affirmed.

Decided: June 16, 2011

Court: Court of Appeals of Texas, Eastland.