Divorce Attorney Leslie Barrows
Confrontation Clause: Fort Worth’s 2nd District Court of appeals reverses sex assault conviction 

In a recent Second District Court of Appeals ruling in Fort Worth, the court majority reversed a defendant’s sexual assault convictions based on arguments made to the appellate court that the trial court judge violated his constitutional rights by not allowing him to confront his accusers, specifically restricting his cross examination of two witnesses for the prosecution.

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.[i]

Defendant’s constitutional claims

At issue was the preservation of the defendant’s constitutional claims and arguments. The minority dissenting justices noted in the opinion that the defendant did not make or preserve any constitutional arguments about confronting the prosecution witnesses at the trial court level and not until the filing of his appeal following his sexual assault conviction.

During trial, the court restricted the defendant’s cross examination of the sexual assault complainant regarding patient treatment. The exchange is as follows:

“[DEFENSE COUNSEL]: Judge, we would submit that all of this testimony is relevant and should come before the jury so the jury can get the whole picture of the situation. So . . . we’d like to ask these questions in front of the jury.

[THE STATE]: Your Honor, we’d object as hearsay. Also, it is not relevant to anything related to the elements in this case. Also, it should not be admissible under 404. Argue none of it should be admissible.

THE COURT: Sorry. I didn’t hear that last part.

[THE STATE]: Under 404, it should not be admissible. And also, additionally, I stated — I believe it’s hearsay and not relevant.

THE COURT: I sustain the objection.[ii]

Similarly, the trial court limited the defendant’s opportunity to cross examine the nurse who examined the alleged victim:

“[DEFENSE COUNSEL]: The State has asked this witness about her report as to the past medical history given to her by the victim, and she repeated several things about the patient’s history that was given to her by [the complainant]. Included in that report and part of the past medical history is that she was taking Xanax and Zoloft and that she had been suffering from anxiety as a current condition and also that she had a chronic problem with herpes. That is all in the medical report. . . . So I think the State has opened the door to discussing the rest of the medical history.

THE COURT: And specifically what are you trying to get into?

[DEFENSE COUNSEL]: The fact that she — all of it, Your Honor. It’s on the —

THE COURT: Let me hear it for the record. What is it you’re trying to get into?

[DEFENSE COUNSEL]: That [the complainant] was taking Xanax and Zoloft, that she had current problems with anxiety, and that she had a chronic problem of herpes.

THE COURT: Response?

[THE STATE]: Yes, Your Honor…. I think they’re trying to elaborate on something that wasn’t asked of this witness. And besides that, they’re still trying to get into 404 information, relevance of this information, other than to basically smear this victim’s character, which isn’t acceptable at this time. That violates 404. So we continue our objections. We do not believe the door has been opened.[iii]

The trial court sustained the prosecution’s objection to the scope of defendant’s intended cross examination of the witnesses.

The opinion is a good read and there is an explanation of the preservation rule which generally states that if you don’t make a constitutional claim or argument during trial, it should not be allowed on appeal.

Despite arguments that the defendant failed to make proper confrontation clause claims during his trial, a majority of appellate court justices agreed that the defendant had been denied his right to due process of law and thus the sexual assault conviction cannot stand and must be overturned.

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[i] Confrontation Clause, U.S. Constitution, VI Amendment.

[ii] Joshua Golliday v. The State of Texas, Court of Appeals, Second District, No.: 02-15-00416-CR

[iii] See HNii above.

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