Inadmissible Evidence under 608(b) of the Texas Rules of Evidence May be Admissible under 613(b), Rule 412 or Confrontation Clause

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair


A Harris County federal jury recently awarded $5 million to George Rodriquez for the 17 years he spent in the Texas prison system after being wrongfully convicted of the rape of a 14-year-old girl. And a Harris County district court judge last December ordered Ricardo Rachell released after he spent six years in the Texas prison system after being wrongfully convicted of sexually molesting an eight-year-old boy.


These two cases are just a series of wrongful convictions in sex offense cases that have been uncovered in Harris County and throughout the State of Texas. It is easier to wrongfully convict a person of a sex offense than any other crime. There are few crimes that carry such a heinous social stigma. Just the mention of a child sex crime often creates a presumption of guilt (Just look to Michael Jackson). It is one of the few crimes that require only the word of the alleged victim to establish the guilt of the person accused. These are generally “she said/he said” kinds of facts scenarios. Just last year, this Firm successfully defended, at two separate trials, a corrections officer who had been charged with child sex crimes based solely on the word of the female inmates. Although our client was acquitted of the false rape accusations, he and his family were put through an ordeal of financial sacrifice, shame and embarrassment, and the loss of his career in law enforcement.


Beyond intentionally submitted false forensic evidence and mistaken identification, why is it so easy to wrongfully convict defendants charged in sex offense cases? The primary reason is that the evidentiary rules of evidence are stacked against the defendant in favor of protecting the alleged victim from further emotional “trauma” associated with sexual assault. For example, in Texas, a defendant does not have a per se right to impeach a sexual assault victim about prior false sexual assault allegations made by the victim.



The Texas Court of Criminal Appeals (“CCA”) made this abundantly clear in 2000 in the case of Rudolfo Lopez. 1/ Lopez was convicted of sexually assaulting a 12-year-old boy (forcing the boy to perform oral sex on him over a period of several months) and sentenced to twelve years in prison. At his trial Lopez had sought to introduce evidence that two years earlier the boy had made a false allegation of physical abuse against his mother; namely, that his mother had thrown him against a washing machine. Lopez sought to use this false allegation the boy had made to the Department of Human Services, but the trial court refused to allow the evidence under Rule 608(b) of the Texas Rules of Evidence. Although a state appeals court would later rule that the evidence should have been admitted, the CCA reversed the appeals court ruling and upheld the trial court decision not to admit the false allegation evidence. 2/


Lopez had argued, and the court of appeals agreed, that the trial court’s refusal to admit the evidence of the prior false abuse allegation violated his federal Sixth Amendment right to confront the victim with impeachment evidence. The primary purpose of what is known as the “Confrontation Clause” of the U.S. Constitution is the right of cross examination of a witness offering incriminating testimony against an individual accused of a crime. While the CCA has long maintained that the Confrontation Clause will always prevail when there is a conflict between the constitutional right of confrontation and state evidentiary rules of evidence, the state’s highest court of criminal appeals has vested trial judges with broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of cumulative or collateral evidence. 3/



This is where Rule 608(b) comes into play. This Texas “impeachment statute” provides that “specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.”



At least thirty-one states have carved out exceptions to similar impeachment statutes under the premise that the Confrontation Clause requires the admission of prior false accusations of abuse by an alleged victim based on the following reasons:



Sex offenses are easily charged and difficult to disprove.



There are usually no witnesses in sex offense cases; therefore, the credibility of the alleged victim and defendant are more critical issues.


The nature of the charge is apt to arouse sympathy and bias for the alleged victim.


The CCA in Lopez said that none of these rationales persuaded it to “create an across-the-board exception to [608(b)] for sex offenses.” 4/ The CCA then set forth its reasons for not establishing a per se right to use prior false abuse allegations for impeachment purposes in sex offenses cases:


“First, sex offenses are not any easier to charge or any more difficult to disprove than any other case. In fact, often it is just the opposite. Studies show that ‘rape is rarely reported to anyone, and women who do report the crime often wait days, weeks, months, or even years before confiding in a family member, a friend or a rape crisis counselor, much less going to the police.’ The fact is that in sex offenses, it is often extremely difficult for the victim to come forward. And these offenses are no more difficult to disprove than any other accusation. As with any other charge, a defendant may argue mistaken identification, consent, failure of the State to meet its burden of proof, or any other defense available in a criminal case.


“Credibility of the witnesses is no more important in sex offenses than in any other case. Any case can involve a swearing match between two witnesses: an assault in which the defendant and the victim are alone and the defendant threatens the victim with imminent bodily injury; a kidnapping in which the defendant restrains the victim in an isolated location and the victim eventually escapes; an attempted theft in which the defendant and the victim are alone and the defendant grabs the victim’s purse but is unable to get it away from the victim. In each of these examples, there is no physical evidence and there are no additional witnesses to the crime. In contrast, although some sex offenses have no corroborating physical evidence, many sex offenses do — such as evidence of victim penetration or traces of the attacker’s DNA. So the complainant’s and the defendant’s credibility are no more critical issues in sex offense cases than in any other type of case.


“Any emotions associated with sex offenses are all the more reason to prevent admission of prior false accusations by the victim … we [have] said that ‘sexual offenses are highly emotional issues in our society and the defendants are regarded differently from the ‘ordinary’ criminal.’ But the same is true for victims of a sexual offense. They, too, are regarded differently from the ‘ordinary’ victim. No other victim of any offense is so likely to be accused of fabricating, fantasizing, or ‘asking for it.’ The increased emotional level associated with sexual offenses is all the more reason to refuse to allow the jury to be additionally confused by collateral acts of misconduct by a witness. Indeed, that is the entire purpose behind Rule 608(b).” 5/


The bottom line in the CCA’s reasoning was that prior false allegations of abuse do not prove or disprove any of the elements of a sex offense. The CCA criticized those states that have carved out exceptions for prior false allegations of abuse in sex offense cases for relying upon nothing more than “generalizations” to justify the exceptions and charged that these “generalizations are just not true in every case.” 6/


The CCA, however, did qualify its Lopez ruling by saying that while it did not believe there should be a “per se exception” to Rule 608(b), there could be cases where the Confrontation Clause requires the admission of a prior false allegation of abuse. 7/


In April 2009 the CCA found such an “exception” in the case of Murray Hammer who was convicted of indecency with a child who had made prior false allegations of abuse. 8/ This case involved a troubled 15-year-old teenager who had a long history of being under the supervision of Child Protective Services (“CPS”) because her mother had a drug problem. In June 2005 the girl was removed from her mother’s home by CPS and sent to live with her father, Murray Hammer, and her grandmother. At the time the young girl was taking the mood-stabilizing drugs Prozac and Seroquel.


The sex abuse charge against Hammer arose after he and his daughter visited a family friend. The teenager alleged that all three of them drank vodka before she took her Seroquel and fell asleep on the living-room couch with her clothes on. The girl said she awakened sometime during the night to find that her pants and underwear had been removed and her father standing over her. She said she got up and went into the bedroom where her friend was “passed out” and went back to sleep. She said awoke again to find her father in bed with her “kind of spooning me” with “his hands on my crotch.” She reportedly got up again and went back to the couch. The next morning she said she told her father she knew what he had done and he supposedly told her that he was sorry. The girl did not report this alleged incident of abuse. 9/


Two weeks later, according to the girl, she was sleeping in her grandmother’s bed when she allegedly awoke again to find her father behind her with his hands down in front of her pants rubbing her vagina. The girl said that when her father realized she was awake, he jumped up and left the room. The girl told a friend a week later about these episodes. The friend then reported the incidents to school officials who called CPS.


Criminal charges were brought against Hammer. At his trial the daughter testified that when she lived with her mother, she could do “pretty much” whatever she wanted to but that her father was strict and insisted she obey the rules of conduct he had laid down. The daughter admitted she was often extremely angry with her father about these strict rules, especially the curfew rule against her staying out late at night. She said this particular rule led to a lot of “fights” between them. However, when asked by Hammer’s attorney whether she had ever said that if her father did not leave her alone, she would get him sent to prison or whether she had ever told anyone that the sexual incidents never occurred, she denied having done so. 10/


Hammer’s attorney sought to have admitted the teenager’s medical records which included a July 2005 sexual assault examination conducted one month after she went to live with her father. This examination followed an accusation she had made that another man had “sexually assaulted” her when she ran away from home. Her father had taken her to the hospital to determine if his daughter had been sexually assaulted. During this examination, the girl had told the examining nurse that she was angry with her father because he wanted “to prove I had sexual intercourse with one of the guys that I ran away with.” She then told the nurse (and would later tell yet another witness) that when she was 13 years of age, an uncle had put his hands on her genital area which was the very same conduct she had accused her father of doing. 11/


Hammer’s attorney also discovered that the girl had told a friend that she falsely blamed one of the guys she ran away with of having sexually assaulted her because she had actually been with another man. The girl’s grandmother also told Hammer’s attorney that her granddaughter had told her that every one of the girl’s mother’s boyfriends had molested her. The grandmother revealed yet another instance where the girl had ran away from home with a cousin and called on a cell phone to say the girls had been kidnapped by five men and were being raped by them. 12/


Hammer’s attorney argued before the trial court that the jury should hear this evidence of prior false abuse allegations because (1) it was relevant to the alleged victim’s truthfulness, (2) it was permissible under the Confrontation Clause, and (3) it would show the girl’s motive of falsely accusing her father because he was trying to stop her “wild’ conduct. 13/ The trial judge, however, refused to allow the jury to hear this impeachment evidence because she believed its prejudice outweighed its probative value.


The CCA disagreed, saying the evidence was “strong support” for Hammer’s defense theory that his daughter had a motive to falsely accuse him of the sexual molestation. The CCA noted that while the Texas Rules of Evidence do not contain a specific rule permitting the use of bias or motive evidence, the court said Rule 613(b) presumes a right to admit such evidence “because it deals with how the witness may be examined concerning bias or interest and when extrinsic evidence of that bias or interest may be admitted.” 14/


The CCA offered two additional reasons why it could have been properly admitted. First, the court cited Rule 412 which contains an explicit “motive or bias” exception to the statutory bar prohibiting evidence of an alleged victim’s prior sexual conduct. Second, the CCA said the Confrontation Clause may have required admission of the impeachment evidence had Hammer been able to show that he had no other means except through cross examination to show his daughter’s motive to fabricate the sexual molestation allegations against him. 15/


The trial judge in the Hammer case was no doubt influenced by the CCA’s earlier strict decision in Lopez. That’s why we feel the Texas Legislature should follow the lead of thirty-one other states and at least two federal circuits—the Fifth and Seventh—by creating a per se exception to Rule 608(b) to allow juries to hear evidence of prior false abuse allegations made by an alleged sexual assault victims. 16/ Defense attorneys have a difficult enough time combating fabricated forensic evidence and mistaken identifications in “stranger-on-stranger” sexual assault cases without being prevented from presenting evidence of an alleged sexual assault victim’s prior false abuse allegations.


While we do not subscribe to the stereotypical maxim “once a liar, always a liar,” we strongly believe that the word of an angry child bent on avoiding discipline or a girlfriend scorned or a former vindictive spouse trying to get custody of the children should be subject to impeachment when those victims have made prior false allegations of abuse. We share the belief held by most courts and state legislatures that rape is the easiest charge to make and the most difficult to disprove. That’s precisely why there should be a per se evidentiary rule in Texas that allows a person accused of sexual assault to impeach the testimony of his/her accuser with bona fide instances of prior false abuse allegations made by the accuser.




1/ Lopez v. State, 18 S.W.3d 220 (Tex.Crim.App. 2000)
2/ Id., at 222.
3/ Id.
4/ Id., at 224
5/ Id.
6/ Id., at 225
7/ Id.
8/ Hammer v. State, 2009 Tex.Crim.App. LEXIS 513 (Tex.Crim.App. April 8, 2009)
9/ Id., at Lexis 3
10/ Id., at Lexis 4
11/ Id., at Lexis 5
12/ Id., at Lexis 8
13/ Id., at Lexis 6
14/ Id., at Lexis 31
15/ Id., at Lexis 32
16/ Redmond v. Kingston, 240 F.3d 590 (7th Cir. 2001); Kittleson v. Dretke, 426 F.3d 306 (5th Cir. 2005)

a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
(1) the evidence may refer only to character for truthfulness or untruthfulness; and
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.


(a) Examining Witness Concerning Prior Inconsistent Statement. In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of such statement may be allowed, the witness must be told the contents of such statement and the time and place and the person to whom it was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).
(b) Examining Witness Concerning Bias or Interest. In impeaching a witness by proof of circumstances or statements showing bias or interest on the part of such witness, and before further cross-examination concerning, or extrinsic evidence of, such bias or interest may be allowed, the circumstances supporting such claim or the details of such statement, including the contents and where, when and to whom made, must be made known to the witness, and the witness must be given an opportunity to explain or to deny such circumstances or statement. If written, the writing need not be shown to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits such bias or interest, extrinsic evidence of same shall not be admitted. A party shall be permitted to present evidence rebutting any evidence impeaching one of said party’s witnesses on grounds of bias or interest.
(c) Prior Consistent Statements of Witnesses. A prior statement of a witness which is consistent with the testimony of the witness is inadmissible except as provided in Rule 801(e)(1)(B).


(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.
(b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this 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.
(c) Procedure for Offering Evidence. If the defendant proposes to introduce any documentary evidence or to ask any question, either by direct examination or cross-examination of any witness, concerning specific instances of the alleged victim’s past sexual behavior, the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible under paragraph (b) of this rule. The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.
(d) Record Sealed. The court shall seal the record of the in camera hearing required in paragraph (c) of this rule for delivery to the appellate court in the event of an appeal.

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair