In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00177-CR
DATAURUS DENZELL GOTCHER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 1323177
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Chief Justice Morriss
Dissenting Opinion by Justice Moseley
OPINION
Two very vivid, and dramatically different, pictures were painted by opposing witnesses
in the Hopkins County jury trial of Dataurus Denzell Gotcher on a charge of sexual assault. The
narrative sponsored by the State depicted a violent struggle between Gotcher and Janie Lynn
Ragsdale in Ragsdale’s house Tuesday, January 8, 2013, ending in Gotcher’s sexual assault of
Ragsdale. The opposing narrative from Gotcher and allied witnesses, notably Gotcher’s cousin,
Tacka Gotcher, depicted consensual sexual activity between Ragsdale and Gotcher two days
earlier in the apartment of Gotcher’s cousin. The jury believed the State’s narrative, convicted
Gotcher of sexually assaulting Ragsdale, and assessed a twenty-year sentence. 1
In Gotcher’s sole issue on appeal, he contends that the trial court erred in excluding
testimony by Tacka about one particularly graphic part of the Sunday narrative, oral sex.
Gotcher argues on appeal that the trial court should have allowed Tacka’s testimony that, on
Sunday, Ragsdale performed oral sex on Gotcher. Gotcher claims this was necessary so the jury
could consider it when weighing his claim that Ragsdale was not sexually assaulted Tuesday but
was, instead, a willing participant at that time. While we find that excluding the evidence was
error, we find the error harmless.
Gotcher and Ragsdale first met Sunday, January 6, 2013, when they were among several
people who had gathered at Tacka’s apartment. Ragsdale acknowledged having consumed
Xanax and smoked marihuana that day. Ragsdale’s two-year-old son was present while she
1
See TEX. PENAL CODE ANN. § 22.011 (West 2011). The trial court sentenced Gotcher accordingly.
2
engaged in these intoxicating activities; the son was playing with Tacka’s gerbils. 2 Ragsdale
decided to purchase the gerbils for that son. Gotcher helped Ragsdale carry the gerbils and
Ragsdale’s car seat to the apartment of Matthew Brooks, Ragsdale’s friend. Brooks testified
Ragsdale told him she was trying to get rid of Gotcher because he was bothering her.
The following day, Gotcher accompanied Marcus Wells to the house Ragsdale shared
with her boyfriend, bringing more accoutrements for the gerbils, as well as marihuana, which the
three smoked in Ragsdale’s garage. 3
Ragsdale testified that Gotcher sent her several text messages on Monday, after getting
Ragsdale’s number from Tacka. She said most of the messages were just casual or chatty in
nature,
[n]othing out of line except one time, one text . . . . He wanted to -- he asked if he
could come over one night when my boyfriend was at work, and something about
baby -- I can’t remember exact details. I did take Xanaxes on Monday, too --
baby oil and wanting to be with me and things like that. And I told him don’t --
not to text my phone anymore, don’t call my phone anymore, please; I can’t do
that.
Ragsdale indicated that, although she did not respond further to Gotcher’s messages, he
continued to send them.
Ragsdale testified that she was surprised when Gotcher knocked on the front door of the
house about 10:00 p.m. Tuesday night. She indicated that it was cold and raining that night and
that Gotcher told her he was waiting for a ride. Although she indicated that Gotcher could wait
for his ride in the garage, he entered the house against her will. Then, according to Ragsdale, he
2
Some witnesses called them gerbils, some called them hamsters.
3
Wells, though, testified Ragsdale supplied the marihuana. Wells also said he had the impression they were
expected and Ragsdale was not surprised to see them at her home.
3
suggested that, since her boyfriend was absent, they just go back in the bedroom Then, when
she resisted that idea, Gotcher said, “Either you’re going to give it to me or I’m going to take it.”
Ragsdale testified that she apologized to Gotcher for any mixed signals or indications of interest
in him that she might have given, and told him she was not “th[at] kind of woman.” She said she
was crying, and Gotcher said, “[A]t least let me out the back door.” Ragsdale complied by
taking him to the back door to let him out, but, instead of exiting the house, he grabbed her.
Ragsdale testified that she resisted strongly, saying she believed that she knocked out one of his
teeth in the ensuing struggle and believed that she heard him spit one of his teeth out. 4
Ragsdale testified that Gotcher wrestled her to a bed, where she continued to attempt to
ward him off by kicking him. She said he nevertheless pulled off her sweat pants and ripped off
her panties. Continuing her attempts to dissuade him, she told Gotcher that she had human
papilloma virus (HPV); he responded that he did not care. She asked him to put on a condom
and thought she could distract him while he put it on. She said Gotcher kept telling her to
cooperate. She indicated that, despite her efforts and protestations, Gotcher succeeded in
accomplishing the sex act, but she was able to push him off her immediately before he
ejaculated, causing him to ejaculate on the bed. Ragsdale also said that she threw the ripped
panties away and that the trash was collected three days later, thus explaining why the panties
were not found by police. Although Ragsdale told an officer that she knocked out one of
4
No tooth was found in the room. Trial occurred about five months after the incident, and Gotcher’s mouth was
shown to the jury, apparently revealing no missing teeth. Gotcher testified he was not missing any teeth and had
not been treated by a dentist since his arrest, about nine days after the event on Tuesday night.
4
Gotcher’s teeth, the officer did not look for it, and Ragsdale’s boyfriend looked for, but could not
find, it.
Gotcher’s version of events differed radically. He concurred with Ragsdale that they had
first met Sunday, but his account of the events was otherwise substantially different. He
indicated that Ragsdale initiated physical contact between the two by “rubbing on” him. He said
this activity started in the dining room and hallway and that she “dropped her clothes in front of
[him],” and showed him pictures, on her phone, of her body. He said that the two of them then
went to a bedroom where Ragsdale performed fellatio. Gotcher said that he did, indeed, go to
Ragsdale’s house the next day. However, he said that this visit was because Ragsdale had called
him on the telephone to invite him and that, when he arrived, they stood in the garage and she
began, once again, to “rub on” him. Gotcher indicated that Ragsdale called him on Tuesday, and
invited him to come to her house at a particular time and to bring a condom with him. Gotcher
said that, when he arrived, Ragsdale invited him into the house, whereupon the pair of them
retired to the back room and engaged in consensual sex. He said that Ragsdale told him to
“hurry up before [Ragsdale’s boyfriend] came home.” He said that no clothes ripping occurred
and that she did not knock out his tooth.
Reputation or opinion evidence of the prior sexual behavior of a sexual assault victim is
inadmissible. TEX. R. EVID. 412(a). Further, unless the conduct falls within certain specified
categories, specific instances of past sexual behavior of such a victim is likewise inadmissible.
TEX. R. EVID. 412(b). One of the enumerated exceptions applies where “past sexual behavior
with the accused . . . is offered by the accused upon the issue of whether the alleged victim
5
consented to the sexual behavior which is the basis of the offense charged.” TEX. R. EVID.
412(b)(2)(B). If such an exception to the exclusionary rule applies, the proponent of the
proffered evidence must still demonstrate that the evidence’s “probative value outweighs the
danger of unfair prejudice.” TEX. R. EVID. 412(b)(3).
In his case-in-chief, Gotcher introduced testimony from his cousin, Tacka, 5 who
described Sunday’s events at her apartment. Although Gotcher and Ragsdale had just met on
that occasion, Tacka said that Ragsdale was “all over [Gotcher] . . . . Like physical all over him,
touching him, had her hands in his pants.” She also said the couple went into Tacka’s bedroom.
At this point in the testimony, Gotcher advised the trial court at a bench conference that he was
about to elicit testimony from Tacka that she had seen Ragsdale as she performed oral sex on
Gotcher, and Gotcher wanted to make certain that he complied with the order on the State’s
motion in limine. In essence, Gotcher was seeking to introduce evidence of what he claimed was
a previous sexual encounter to shore up his claim of consent to Tuesday’s encounter in reliance
on Rule 412(b)(2)(B) of the Texas Rules of Evidence, which allows evidence of past sexual
behavior with the accused as bearing on “whether the alleged victim consented to the sexual
behavior which is the basis of the offense charged.” TEX. R. EVID. 412(b)(2)B).
On the State’s objection that such evidence was not relevant, the trial court excused the
jury and read Rule 412 of the Texas Rules of Evidence aloud. Gotcher’s attorney explained that,
other than Anastasia Ricker who might testify to seeing Ragsdale “rubbing on [Gotcher],”
counsel did not at that time anticipate any other testimony, beyond that of Tacka, regarding
5
At the time of Tacka’s testimony, Gotcher had not yet taken the stand.
6
specific sexual acts between Ragsdale and Gotcher. 6 The trial court ruled that Gotcher could not
present Tacka’s testimony describing oral sex by Ragsdale on Gotcher for various reasons,
including “[t]he issue of consent is not squarely before the Court,” Ragsdale’s testimony denying
flirtatious behavior with Gotcher had already been impeached, and “the probative value of [the
testimony concerning oral sex] would be greatly outweighed by the danger of unfair prejudice.”
See TEX. R. EVID. 412(b)(3).
Later, when Gotcher took the stand, he tried to bring up the alleged interlude with
Ragsdale from Sunday afternoon. Again, the trial court did not believe consent had yet been
sufficiently raised. At this point, defense counsel asked Gotcher about the Tuesday night sexual
encounter, including Gotcher’s testimony that (1) nothing in Ragsdale’s behavior made him
think the act was not consensual; (2) she told him to bring, and then use, a condom; and (3) she
told him when to arrive. Only after Gotcher admitted that the Tuesday sexual encounter had
occurred, but he believed it had been consensual, was he allowed to give his version of events
from the preceding Sunday, that Ragsdale had been rubbing on him, that she removed at least
some of her clothes, that she showed him pictures of her body using her phone, and that she then
“pulled out [his] [penis] and started performing oral sex on [him].”
Gotcher’s appeal challenges the trial court’s exclusion of Tacka’s testimony that, on
Sunday, Ragsdale performed oral sex on Gotcher. We review the trial court’s decision to admit
or exclude evidence under an abuse-of-discretion standard, and we will not disturb the trial
6
We make note of this as an indication that, at that moment in the trial, it appears either that the defense did not
anticipate having Gotcher testify or did not take into account that his testimony would include his relation of the
story about fellatio.
7
court’s ruling if it is within the zone of reasonable disagreement. Cameron v. State, 241 S.W.3d
15, 19 (Tex. Crim. App. 2007); Smith v. State,
401 S.W.3d 915, 917 (Tex. App.—Texarkana
2013, pet. ref’d).
Contrary to the trial court’s statements that “consent [was] not squarely before the Court”
and needed to be “more prominently before this jury” to warrant admission, we find that whether
Ragsdale consented to the sexual encounter Tuesday night had already been raised when Gotcher
sought to admit Tacka’s testimony. To that point, (1) Gotcher had alleged in opening argument
that the evidence would show Ragsdale was having an affair, (2) through questioning of State’s
witnesses, Gotcher had pointed out that Ragsdale waited several days to report the alleged
assault, and (3) there was no evidence of visible marks on Ragsdale that would have usually been
present had she attempted to ward off such an assault. The trial court and the State, in statements
outside the jury’s presence, both indicated the day before Tacka’s proffered testimony that
consent was at issue. Indeed, these comments arose during a discussion of whether Gotcher’s
counsel had violated a motion in limine granted to the State wherein it sought to bar reference to
any statement that Gotcher had made to law enforcement. The State vigorously fought to keep
this statement, in which it appears that Gotcher acknowledged having engaged in sexual
intercourse with Ragsdale on Tuesday night, from the jury. The State, before Tacka’s testimony
was offered, asked Brooks and Ragsdale if Ragsdale had kissed or flirted with Gotcher or sat in
his lap. The portion of Tacka’s testimony which was allowed (that she had observed Ragsdale
physically touching Gotcher, including having “her hands in his pants,” and then observed the
two go into a bedroom together) established that Gotcher was raising the defensive theory that
8
Ragsdale’s acts on Sunday should have been considered in assessing whether the sexual liaison
Tuesday night was consensual. Consent was at issue 7 in this trial even before the
commencement of Tacka’s testimony, and it was error to limit her testimony on the basis that it
was not.
The other rationale expressed by the trial court for excluding Tacka’s testimony regarding
oral sex dealt with weighing the probative value of her testimony against its prejudicial effect.
See TEX. R. EVID. 412(b)(3).
A trial judge has broad discretion in admitting or excluding evidence. A trial
judge, however, may exercise . . . discretion in excluding evidence only when its
probative value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, misleading the jury, by considerations of undue delay, or
needless presentation of cumulative evidence.
Mozon v. State, 991 S.W.2d 841, 846–47 (Tex. Crim. App. 1999) (citing TEX. R. EVID. 403). 8 It
is presumed that the probative value of offered evidence will outweigh any prejudicial effect.
Montgomery v. State,
810 S.W.2d 372, 389 (Tex. Crim. App. 1991) (op. on reh’g). “Probative
value” refers to how strongly it serves to make more or less probable the existence of a fact of
consequence to the litigation coupled with the proponent’s need for that item of evidence. Casey
7
It is true that, following the trial court’s ruling that the issue of consent was “not squarely before the Court” and
needed to be “more prominently before this jury,” the court promised to “revisit that issue if . . . the issue comes
forward; that is, that there was an acknowledgment of -- of sexual intercourse.” Gotcher did not re-urge his offer of
Tacka’s testimony after the defendant himself testified to the intercourse. However, this does not change the fact
that, at the time of Tacka’s testimony, consent was very much at issue.
8
Although Mozon dealt with a Rule 403 complaint, we find that its reasoning is also appropriate for a 412 balancing
situation. See Miles v. State,
61 S.W.3d 682, 687 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d) (citing Mozon
and applying abuse of discretion standard to find evidence excluded under Rule 412 more probative than
prejudicial); see also Stephens v. State,
978 S.W.2d 728, 732–33 (Tex. App.—Austin 1998, pet. ref’d) (“The
function of the balancing test of Rule 412(b)(3) is generally consistent with that under Rule 403,” but noting “[t]he
general balancing test under Rule 403 weighs in favor of the admissibility of evidence, while Rule 412(b)(3) weighs
against the admissibility of the evidence”).
9
v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007). “Unfair prejudice” refers to a tendency
to cause a decision to be made on an improper basis; evidence may be unfairly prejudicial if it
arouses the jury’s hostility or sympathy for one side without regard to the logical probative force
of the evidence.
Id. at 879–80. In light of the policies underlying Rule 412, the unfair prejudice
language contemplates prejudice not only to the State, but also to the victim, who will potentially
be stigmatized if the defendant is able to introduce evidence of prior sexual behavior. See
Stephen v. State,
978 S.W.2d 728, 733 (Tex. App.—Austin 1998, pet. ref’d). The trial court
abuses its discretion when it acts without reference to any guiding rules or principles.
Montgomery, 810 S.W.2d at 379–80. The mere fact the trial court may decide an evidentiary
matter differently than would an appellate court does not render the ruling an abuse of discretion.
Id. We will not reverse the trial court’s ruling if it was within the zone of reasonable discretion.
Id. at 391. 9 The proponent of evidence in a Rule 412 setting bears the burden of establishing that
the probative value outweighs the danger of unfair prejudice. Stephens,
978 S.W.2d at 733.
In Miles v. State, 61 S.W.3d 682, 687 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d),
the trial court was found to have abused its discretion in precluding cross-examination of the
victim or introduction of other evidence of her prior sexual history. The victim testified that
Miles was the only person with whom she had engaged in sex. The proffered, but excluded,
evidence was that the victim had told others that she had engaged in sex with two other
9
Trials involving sexual assault “are frequently ‘he said, she said’ trials in which the jury must reach a unanimous
verdict based solely upon two diametrically different versions of an event, unaided by any physical, scientific, or
otherwise corroborative evidence.” Hammer v. State,
296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009).
Addressing a Rule 403 matter, the Texas Court of Criminal Appeals stated, “[T]he Rules of Evidence, especially
Rule 403, should be used sparingly to exclude relevant, otherwise admissible evidence that might bear upon the
credibility of either the defendant or complainant in such ‘he said, she said’ cases.” Hammer,
296 S.W.3d at 562.
10
individuals. Miles denied having sex with the victim. The excluded evidence was critical to
Miles’ defense, and the jury was not allowed to consider that evidence in gauging the victim’s
credibility. The appellate court held that the excluded evidence was more probative than
prejudicial and that its exclusion was an abuse of discretion on the part of the trial court.
The accused in Hood v. State, 944 S.W.2d 743 (Tex. App.—Amarillo 1997, no pet.),
sought unsuccessfully to present evidence of the thirteen-year-old complainant’s prior sexual
activities on the rationale that the prior sexual activity could have accounted for healed tears in
the complainant’s hymen. Evidence had already been allowed regarding the victim’s pregnancy
at the age of fifteen, of her unmarried status, and her intention not to marry the father of the
child. Thus, the risk of unfair prejudice by way of informing the jury of the complainant’s prior
sexual activities had already been introduced. Further, the State’s theory was that Hood caused
the hymenal tears. The nurse who examined the complainant and to whom the complainant
divulged her other sexual activities said in the offer of proof that the date the child gave of the
other sexual act could have corresponded to the healed status of the tears. The exclusion of the
evidence was ruled an abuse of discretion. Hood, 944 S.W.2d at 745–47; see also Reynolds v.
State,
890 S.W.2d 156 (Tex. App.—Texarkana 1994, no pet.).
In the case at bar, Gotcher’s defensive theory that was expressed to the jury from the
outset of the trial was that Tuesday’s sexual encounter between Ragsdale and Gotcher was
consensual. He sought to introduce testimony from Tacka that she had seen Ragsdale
performing oral sex on Gotcher two days earlier. This evidence was germane to the central issue
11
of the case. It was “critical evidence,” 10 and, thus, probative. It is true that Gotcher adduced the
same evidence via his own testimony; but he still had a real need for this testimony, as it could
have benefited his defense for the jury to hear it from an independent source, even if that witness
was his cousin. As for the danger of unfair prejudice to Ragsdale, the jury had already heard,
without objection, Tacka’s testimony that Ragsdale was “all over” Gotcher, that she had her
hands in his pants, and that she thereafter accompanied Gotcher into the bedroom. After the trial
court’s ruling, Anastasia Ricker would describe similar, albeit less graphic, interactions between
Ragsdale and Gotcher, on that Sunday. Any danger of unfair prejudice to Ragsdale, in the form
of the jury’s opinion of her or her credibility, was outweighed by the probative nature of this
evidence, which was very important to Gotcher’s defensive theory. Tacka’s testimony about
seeing Ragsdale administer oral sex to Gotcher had probative value which outweighed the
danger of unfair prejudice. It was error to exclude it.
We must now assess for harm the error in excluding the evidence. Generally, errors
resulting from admission or exclusion of evidence are nonconstitutional. 11 See Walters v. State,
247 S.W.3d 204, 219 (Tex. Crim. App. 2007). However, if the precluded evidence forms a vital
10
Miles, 61 S.W.3d at 687.
11
The type of error determines the harm analysis:
(a) Constitutional Error. If the appellate record in a criminal case reveals constitutional error
that is subject to harmless error review, the court of appeals must reverse a judgment of conviction
or punishment unless the court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment.
(b) Other Errors. Any other error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.
TEX. R. APP. P. 44.2.
12
portion of the defendant’s case, the error may be of constitutional magnitude. Id.; Potier v. State,
68 S.W.3d 657, 665 (Tex. Crim. App. 2002).
Exclusion of evidence might rise to the level of a constitutional violation if: (1) a
state evidentiary rule categorically and arbitrarily prohibits the defendant from
offering otherwise relevant, reliable evidence vital to his defense; or (2) a trial
court’s clearly erroneous ruling results in the exclusion of admissible evidence
that forms the vital core of a defendant’s theory of defense and effectively
prevents him from presenting that defense.
Walters, 247 S.W.3d at 219.
We conclude that this error does not rise to the constitutional level. In Walters, the
defendant was prohibited from offering a second 9-1-1 recording for the jury to hear. The State
offered a recording of the first emergency call and presented a theory that, immediately after the
shooting, Walters had made no explanation for having shot his own brother, the victim. The jury
was not allowed to hear the second emergency call in which Walters said he had shot his brother
in self-defense. Id. at 220–21. The Texas Court of Criminal Appeals found that Walters was,
nevertheless, able to present his defense through his and other witnesses’ testimony, which
described the history of animosity between the siblings.
Id. at 221–22. The court thus found the
error to be nonconstitutional.
Id. at 222; see also Valle v. State,
109 S.W.3d 500, 507 (Tex.
Crim. App. 2003) (“The fact that appellant was not able to present his case in the form he desired
does not amount to constitutional error when he was not prevented from presenting the substance
of his defense to the jury.”).
Here, the excluded testimony was certainly of a graphic and important nature to
Gotcher’s defense, but he was still able to present his defense without it. We, therefore, evaluate
13
this error as nonconstitutional and evaluate harm based on whether it affected Gotcher’s
substantial rights.
Nonconstitutional error which does not affect an accused’s substantial rights is harmless
and must be disregarded. TEX. R. APP. P. 44.2(b). Substantial rights are not affected if we, based
on the record as a whole, have a fair assurance that the erroneous exclusion of evidence either
had no influence or only a slight influence on the jury. Motilla v. State, 78 S.W.3d 352, 355
(Tex. Crim. App. 2002). In making our assessment, we consider everything in the record, the
nature of the evidence supporting the verdict, the character of the alleged error, and how it relates
to other evidence in the record.
Id.
Gotcher’s entire defense was that Ragsdale consented to Tuesday’s sexual intercourse. In
pursuit of that defense, he was able to produce considerable evidence that Ragsdale had shown
sexual interest in him on Sunday. Tacka testified that, on Sunday, Ragsdale and Gotcher had had
sexually charged contact and had together gone into Tacka’s bedroom thereafter. Another
person who testified to having been present that Sunday, Ricker, said that Ragsdale appeared
“interested” in Gotcher, that she was “extra friendly with him,” and that the pair was “touchy-
feely.” Ricker also testified that, at some point that Sunday, Gotcher and Ragsdale went into
another room alone together. She had characterized Ragsdale as having been “all over that
boy.” 12
While Gotcher was still able to present evidence of the Sunday encounter with Ragsdale
to the jury, the description of oral sex by Ragsdale came in only through his testimony. Clearly,
12
Ricker’s testimony was presented after Tacka’s testimony, in Gotcher’s case-in-chief.
14
the jury did not believe Gotcher’s testimony regarding the encounter on Sunday or regarding the
ultimate he-said-she-said question, whether Ragsdale consented to Tuesday’s sexual intercourse.
Tacka’s testimony—which was not allowed to extend to the oral sex—was, if believed, quite
strong, especially when much of it was corroborated by Ricker. Tacka was allowed to testify
that, on Sunday evening, Ragsdale was “all over” Gotcher, rubbed on him, put her hand in his
pants, and, directly after those actions, accompanied Gotcher into Tacka’s bedroom. The clear
implication of Tacka’s testimony, if believed, was that a consensual sexual encounter did occur
between Gotcher and Ragsdale on Sunday evening. A jury that would believe Tacka’s testimony
about Sunday’s events would likely also believe that Ragsdale consented to sexual intercourse
with Gotcha on Tuesday evening, unless there was some significant intervening change in the
relationship or in Ragsdale’s attitude. Based on this record, without any significant evidence of a
change in the relationship or attitude between Sunday and Tuesday, it appears that the jury
simply did not believe Tacka’s testimony concerning Sunday’s events. The jury also disbelieved
Ricker’s and Gotcher’s testimony about Sunday’s events. The jury’s disbelief that Ragsdale and
Gotcher had a consensual sexual encounter Sunday would not necessarily decide the question of
whether Ragsdale consented to Tuesday’s sexual intercourse. In the final analysis, however, we
are reasonably assured that allowing Tacka to testify, additionally, that Ragsdale performed oral
sex on Gotcher Sunday evening would not make the jury any more likely to believe Gotcher’s
testimony that Ragsdale consented on Tuesday. 13 Therefore, we conclude that the erroneously
13
In fact, adding to Tacka’s permitted testimony the lurid claim that Ragsdale performed oral sex on Gotcher on
Sunday evening, while somehow allowing Tacka to witness the act, might actually make Tacka’s overall testimony
not more, but less believable and thus make it even less likely that the jury would believe Gotcher’s testimony that
Ragsdale consented on Tuesday.
15
excluded testimony had little or no effect on the jury’s decision. We overrule Gotcher’s point of
error.
We affirm the trial court’s judgment.
Josh R. Morriss, III
Chief Justice
DISSENTING OPINION
I respectfully dissent.
I concur with the majority’s conclusion that the trial court erred in its preclusion of
Tacka Gotcher’s testimony that she had observed Janie Lynn Ragsdale, the complainant,
performing fellatio on the defendant only two days before the incident giving rise to the charges
against Gotcher. The issue of consent was clearly before the trial court at that time. My dissent
deals, rather, with the result of the harm analysis employed. I believe that Gotcher’s substantial
rights were adversely impacted, and I also believe that the absence of this testimony had a great
impact on the decision handed down by the jury. It is true that Gotcher was not prohibited from
presenting his defensive theory that his sexual conjunction with Ragsdale on Tuesday night was
mutually consensual. However, the jury quite likely found his testimony pertaining to the events
two days before the incident giving rise to charges (i.e., Ragsdale showing Gotcher pictures from
her telephone of her nude body, disrobing, and performing oral sex on him) to have been solely
self-serving. Even though the jury was able to hear testimony from Tacka that Ragsdale had
been acting very suggestively toward Gotcher and had even accompanied him alone into the
16
bedroom of the apartment, the defining feature of the conduct (the fellation of Gotcher by
Ragsdale) screamed of consensual sexual activity between these parties only two days before the
incident of which Ragsdale complains. The testimony of Tacka removed the relation of the
culminating event on Sunday from the category of the “he said/she said” kind of story about the
entire relationship between these two people.
In discussions of the issues in this case, the majority has placed Tacka’s excluded
testimony regarding oral sex in the same category as the other events leading up to that sexual
act that Gotcher said occurred on Sunday. In essence, the majority indicates that if the jury had
believed Tacka about what they heard of her version of the events on Sunday, they would not
have convicted Gotcher of the event on Tuesday. I believe that conclusion diminishes the
importance of the story of fellatio, an act I think would have had much greater significance and
credibility when its story was related by both Gotcher and an independent person, Tacka. 14
The probative nature of this testimony further amplifies the harm to Gotcher’s substantial
rights. As discussed above, Tacka’s excluded testimony was quite probative because it was
relevant to the issue of Ragsdale’s consent to engage in sexual intercourse Tuesday night; it also
went to Gotcher’s intent, a fact of consequence. Gotcher had need of this testimony because,
had Tacka been allowed to fully testify, she would have corroborated Gotcher’s version of what
happened Sunday. Though it is likely that Gotcher still may have needed to testify to
unequivocally present his position that Tuesday’s congress was consensual, if Tacka had
14
It should be noted that if Tacka had been allowed to testify, Gotcher’s lawyer could have argued on closing that if
Gotcher were to lie about the Sunday incident, he could have just as easily claimed that he and Ragsdale had gone
the entire distance that Sunday afternoon and had fully engaged in sexual intercourse. The fact that he testified that
the two stopped at the oral sex stage and there was independent evidence to corroborate that testimony strongly
suggested its veracity.
17
testified, Gotcher could have refrained from taking the stand, and thus not allowed the jury to be
privy to his relatively sordid criminal history.
Gotcher was prevented from fully presenting his defense. In Billodeau v. State, 15 the
defendant was not allowed to question the complainant about threats the complainant made to
accuse witnesses of “molesting” him. Billodeau, 277 S.W.3d at 38. Even though Billodeau’s
testimony contradicted the complainant, 16 he was not able to “fully present his defense” when he
was not allowed to cross-examine the complainant about false threats the complainant had made
to other parties (this to show the complainant’s motive to testify untruthfully). Id. The
defendant also was not allowed to present the complainant’s denials of these threats, which then
would have allowed the defense to present rebuttal testimony about the false threats. The Texas
Court of Criminal Appeals found this erroneous limitation affected a substantial right and was
harmful error. Id.
In Hammer v. State, 17 the defense was not allowed to cross-examine the complainant
regarding claims that she had previously made false accusations against other persons to cover
up the complainant’s own sexual encounters with a boyfriend; and that she had accused multiple
other persons of molesting her. This inability to fully present his defense affected Hammer’s
substantial rights and was harmful error. Hammer, 311 S.W.3d at 22.
15
277 S.W.3d 34 (Tex. Crim. App. 2009).
16
The opinion is not explicit: it says Billodeau contradicted the complainant, denying taking him to the motel where
the alleged offense occurred. The appellant’s testimony also contradicted other aspects of the complainant’s
testimony; from the context of the opinion it appears Billodeau denied the ultimate accusation. Billodeau, 277
S.W.3d at 37–38.
17
311 S.W.3d 20 (Tex. App.—San Antonio 2010, no pet.).
18
I would hold that the trial court’s limitation of Gotcher’s ability to fully present his
defense affected a substantial right, was harmful error, and warrants reversal. I respectfully
dissent.
Bailey C. Moseley
Justice
Date Submitted: April 10, 2014
Date Decided: June 10, 2014
Publish
19
