IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 677-99

RUDOLFO LOPEZ, Appellant

THE STATE OF TEXAS

ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY
Keller, J., delivered a concurring opinion.

CONCURRING OPINION

The Court today declines to adopt an across-the-board exception to Rule 608(b) for sexual offenses. I agree that a case-by-case approach is appropriate for determining when admission of evidence of prior false allegations is required by the Confrontation Clause. I think, though, that as a practical matter, evidence of prior false allegations will be admissible more often in sex cases than in most other types of offenses. The Court seems to suggest otherwise, and it is from this suggestion that I wish to distance myself.

The Court says that credibility of the witnesses is no more important in sex offenses than in any other case. Maybe so, but credibility is more likely to be the only factor in sex cases than it is in other types of cases. For most other kinds of offenses, one can expect corroborating evidence - missing property in a theft case, injury in an assault case, a body in a murder case. One can imagine scenarios in non-sex cases in which credibility of the witness is the only question for the jury, but they are exceptions to the norm. Usually there will be physical evidence of some kind which the jury may consider.

And consent is rarely raised in non-sex cases. When a defendant claims consent, physical evidence that sexual relations took place becomes moot; credibility of the parties becomes the whole question for the jury. I think that it is in sex cases that juries will most often be asked to reach a verdict solely on the basis of the uncorroborated testimony of a victim, and therefore I think that it is in sex cases that the balancing approach will most often render such evidence admissible.

I join the opinion of the Court.

KELLER, J.

DATE DELIVERED: May 3, 2000

PUBLISH