NO. 677-99







Johnson, J., filed a concurring opinion.


I concur only in the judgment of the court. Appellant was convicted of aggravated sexual assault and indecency with a child. At trial, appellant attempted to impeach P.M., the complainant, with a report from the Texas Department of Protective And Regulatory Services (TDPRS) concerning an allegedly false accusation of physical abuse that the complainant had earlier made against his mother. The trial court excluded the evidence. The Court of Appeals found that Tex. R. Crim. Evid. 608(b) (now Tex. R. Evid. 608(b)) prohibited this evidence from coming in, and that the exclusion of the evidence under Rule 608(b) violated appellant's Confrontation Clause rights. Lopez v. State, 989 S.W.2d 402, 408 (Tex. App.--San Antonio 1999). It reversed and remanded for a new trial. Id. We granted the state's petition for discretionary review to determine whether the trial court's exclusion of this evidence violated appellant's rights under the Confrontation Clause. See U.S. Const. amend. VI.

It appears from the record that the trial judge in the instant case did not base his decision on Rule 608(b). Instead, he stated that he was excluding the evidence because it was not "relevant to . . . any of the matters that [were] on trial . . . ." Tex. R. Crim. Evid. 403. In fact, there is little evidence that this prior accusation was false. Although the case worker from TDPRS seemed skeptical of the accusation, it is not clear why she recommended that the case be closed. According to the Court of Appeals,

The case worker described P.M. as "very provocative and hard to handle," and had "the run of the house." She found that P.M. was unable to tell her what a "steel washer" was or where it was in his home, that P.M. did not have any injuries, and the incident was "ruled out." The report indicated that P.M. had trouble making and keeping friends because he refused to bathe and because he lied to them. He "is constantly making up stories." The case worker recommended that the case be closed.

Lopez, 989 S.W.2d at 404. (1) The Court also noted that the recommendation that the case be closed was "based in part on the case worker's conclusion that there was no corroborative evidence of physical abuse and also because P.M.'s mother was very cooperative in seeking counseling to help her deal with P.M.'s behavior." Id. at 404 n.2.

This evidence had little of probative value going to the falsity of the accusation; this is apparently why the trial judge excluded it. On this basis, I do not believe that the trial court abused its discretion in excluding the evidence. Furthermore, such exclusion did not violate appellant's right of confrontation. As has been noted, trial judges retain wide latitude to impose reasonable limits on cross-examination. Such limits have been held not to conflict with the Confrontation Clause, which "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed.2d 674 (1986) (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S. Ct. 292, 295, 88 L. Ed.2d 15 (1985)) (emphasis in original); see also Carroll v. State, 916 S.W.2d 494, 498 (Tex. Crim. App.1996). Therefore, I believe that the court of appeals erred in holding that appellant's rights under the Confrontation Clause had been violated.

However, the majority appears to have accepted that there is a conflict between Rule 608(b) and the Confrontation Clause. In this regard, it states that "[w]e have previously indicated that the Confrontation Clause will prevail if there is a conflict between it and the rules of evidence," and that "Rule 101(c) of the Rules of Evidence dictates that the Constitution should control if there is a conflict." Ante, at ___ (slip op. at 4). These statements indicate a misunderstanding of the law. Even without our previous statement or Tex. R. Evid. 101(c), any conflict between our rules of evidence and the Confrontation Clause would still require, as a matter of federal constitutional law, that the latter prevail over the former. See U.S. Const. art. VI, cl. 2 (Supremacy Clause). The issue, of course, is whether there is such a conflict. As noted above, I do not believe that there is such a conflict.

Based on the foregoing, I concur only in the judgment of the Court.

Johnson, J.

Date Delivered: May 3, 2000


1. The majority has, perhaps reasonably, assumed that "steel washer" means a washing machine. Ante, at ___, ___ (slip op. at 2, 12). However, the record offers nothing to support that assumption.