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Date: 12-20-2020
Case Style:
Christopher Michael Crim v. The State of Texas
Case Number: 03-19-00445-CR
Judge: Thomas J. Bake
Court: TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
Plaintiff's Attorney: Mr. Joshua D. Presley
Ms. Allison Buess
The Honorable Stacey M. Soule
Defendant's Attorney:
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Just Call 855-853-4800 for Free Help Finding a Lawyer Help You.
Description:
Austin, TX - Attempted sexual assault charge criminal defense lawyer represented Christopher Michael.
Crim began dating C.C.’s mother, Jacquelyn Taylor, shortly after she gave birth to
C.C., and the couple ultimately married. The couple later had a biological son and adopted two
of Taylor’s nieces, and Crim adopted C.C. For years, the family lived in San Antonio, and C.C.
1 The indictment alleged two additional counts for sexual assault of a child and one count
of aggravated sexual assault of a child, but the State later abandoned those charges.
2
became friends with Emma Schafer during that time. The couple decided to move to Comal
County to lower their expenses. While the family lived in Comal County, C.C. befriended
Courtney Groesbeck. One day, Groesbeck told her mother that she was concerned that Taylor
might be physically abusing C.C. based on something that C.C. had mentioned. After talking
with Groesbeck, Groesbeck’s mother called Taylor to report what she had heard.
Shortly thereafter, Taylor asked C.C. about what she told Groesbeck and about
some of her recent behavior. C.C. denied telling Groesbeck that Taylor had abused her but told
Taylor that Crim had been molesting her for the last several months. Taylor questioned C.C.
about the allegations, called Crim on the phone, told him to return home because there was a
family emergency, and called the police. One of the responding officers recorded the interaction
between Taylor and Crim when Crim arrived at the home and a later interaction among Taylor,
Crim, and C.C. That recording was admitted into evidence at trial.
After the police arrived, C.C. was taken to a sexual-assault-nurse examiner
(SANE) and to the Children’s Advocacy Center where a counselor interviewed her. A recording
of the forensic interview was admitted into evidence at trial. After the forensic interview,
Detective Danny Dufur interviewed C.C. about the allegations, and a recording of that interview
was admitted into evidence at trial. A few weeks after making the outcry, C.C., her siblings, and
Taylor all moved into Schafer’s home in San Antonio, and Taylor began dating Schafer’s father.
During the trial, C.C. testified generally that Crim sexually assaulted her multiple
times after they moved to Comal County and provided more specific details regarding three of
those incidents. Regarding one of those incidents, C.C. explained that Crim lifted her dress
while they were driving to the store in his car, “started touching” her vagina, inserted his finger
into her vagina, unzipped his pants, grabbed her hand, placed her hand on his penis, and
3
instructed her to squeeze his penis and move her hand up and down. In addition, C.C. testified
that Crim stopped his behavior after she told him that his actions were not appropriate because he
was married and because she considered him to be her father, but she also related that Crim told
her that the activity was fine because they were not biologically related.
Regarding another incident, C.C. testified that Crim told her to go into his
bedroom when Taylor was out of town. When C.C. entered the bedroom, Crim got on top of her
on the bed, rubbed his penis on her vagina, and stopped his behavior when she told him to get
off of her. In addition, C.C. explained that they were both wearing clothes during this incident.
Regarding the third incident, C.C. testified that her younger brother was playing a video game in
his bedroom and asked Crim and C.C. to watch him play through the window while they were
outside the home. Next, C.C. related that Crim inserted his finger into her vagina while they
were outside her brother’s bedroom window.
On the recording of her forensic interview, C.C. stated that Crim inserted his
finger into her vagina and tried to have sex with her about “nine or ten” times while they lived in
Comal County. In addition, C.C. discussed the three incidents summarized above, but there were
some discrepancies between the interview and her testimony. For example, when talking about
the incident in Crim’s bedroom, C.C. stated in her interview that Crim removed his pants and her
pants and rubbed his penis directly on her vagina but testified that they were fully clothed during
the incident. Moreover, C.C. described two other incidents in which Crim touched and then
inserted his finger into her vagina: once while they were outside in the front yard and once while
she was under a blanket on the couch in the living room.
On the recording of her interview by Detective Dufur, C.C. discussed the five
incidents summarized above and mentioned that the incidents all occurred after they moved to
4
Comal County. Additionally, C.C. repeated her assertion that Crim abused her nine or ten times.
Further, C.C. stated that she told her friends Schafer and Groesbeck about the abuse before
telling Taylor.
During the trial, the State called several witnesses to the stand in addition to C.C.,
including Taylor, Detective Dufur, and the SANE. In his case in chief, Crim called multiple
witnesses, including his mother, Schafer, Groesbeck, and another officer involved in the
investigation. In addition, Crim elected to testify.
After considering the evidence presented at trial, the jury found Crim guilty of
four counts of sexual assault of a child and one count of indecency with a child by contact. Crim
appeals his judgments of conviction.
DISCUSSION
On appeal, Crim contends that the trial court erred by sustaining the State’s
objection to testimony regarding the contents of C.C.’s cellphone. C.C.’s cellphone was
mentioned during Crim’s cross-examination of her. Specifically, Crim asked C.C. whether she
had any pornography on her cellphone, and the State objected. In a hearing held outside the
presence of the jury, C.C. admitted that she and her friends used her cellphone to search for
pornography and that some of the searches were for sexual activity among family members.
C.C. also explained at the hearing that she looked at the pornographic material to educate herself
about sex, that she saw male and female genitalia on the videos, and that she had no knowledge
of sexual activities except from what she learned by watching pornography and from what
Crim did to her. After C.C. finished testifying, Crim argued that C.C. watched those videos
shortly before making her outcry and that the evidence related to her ability to make the outcry.
5
Further, Crim asserted that the evidence shows “preparation, . . . planning, knowledge and
absence of mistake” regarding C.C.’s outcry. In response, the State argued that the evidence was
inadmissible under Rule of Evidence 412 because that Rule prohibits the admission of evidence
regarding a sexual-assault victim’s past sexual behavior. See Tex. R. Evid. 412. Further, the
State asserted that most of the videos involved sexual activity that was inconsistent with the
conduct C.C. described in her outcry and that the evidence was unduly prejudicial. After
considering the parties’ arguments, the trial court sustained the State’s objection.
During a later hearing outside of the presence of the jury, Detective Dufur
testified that he discovered pornography on C.C.’s cellphone, that some of the pornography
searches listed in the phone’s history were performed a few days before the outcry, and that it
was possible that C.C. learned about some types of sexual activity by watching the videos. After
Detective Dufur finished testifying, Crim urged that he should be able to question witnesses
about the pornography viewed near the date of the outcry because the evidence related to C.C.’s
knowledge about sexual activity. In response, the State contended that the evidence should not
be admitted because some of the searches were done by C.C.’s friends and because the evidence
was inadmissible under Rule 412. As it did before, the trial court concluded that the evidence
was inadmissible.
In several related arguments on appeal, Crim contends that the trial court erred by
sustaining the State’s objection. First, Crim contends that the trial court’s ruling denied him due
process and violated his confrontation rights by denying him the ability to fully confront his
accuser through cross-examination. See U.S. Const. Amends. V, VI. Building on these alleged
constitutional errors, Crim contends that even if Rule 412 applied in the circumstances present
here, the evidence was admissible under the enumerated exception in Rule 412 authorizing the
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admission of evidence of a victim’s past sexual behavior when it “is constitutionally required to
be admitted.” See Tex. R. Evid. 412(b)(2)(E).
However, Crim did not make these constitutional arguments before the trial court.
To preserve a complaint for appellate review, the record must show, among other things, that the
complaint was made to the trial court. See Tex. R. App. P. 33.1(a); see also Yazdchi v. State,
428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (stating that “the point of error on appeal must
comport with the objection made at trial”); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim.
App. 1995) (noting that objection stating one legal theory may not be used to support different
legal theory on appeal). Accordingly, we must conclude that Crim failed to preserve his
constitutional arguments for appellate consideration. See Oliver v. State, No. 03-19-00725-CR,
2020 WL 5105209, at *2 (Tex. App.—Austin Aug. 27, 2020, pet. ref’d) (mem. op., not designated
for publication) (observing that confrontation complaints are “subject to preservation
requirements” and concluding that defendant failed to preserve confrontation complaint by not
raising complaint with trial court); Johnson v. State, No. 03-12-00006-CR, 2012 WL 1582236,
at *3 (Tex. App.—Austin May 4, 2012, no pet.) (mem. op., not designated for publication)
(explaining that “[n]umerous constitutional rights, including those that implicate a defendant’s
due-process rights, may be forfeited for purposes of appellate review unless properly preserved”
and determining that defendant failed to preserve due-process complaint).
In his next set of arguments, Crim contends that the trial court erred by
concluding that Rule 412 prohibited the admission of the evidence on C.C.’s phone. More
specifically, Crim argues that watching and searching for pornography do not qualify as “sexual
behavior” and, therefore, are not prohibited under Rule 412. See Tex. R. Evid. 412. Further,
Crim highlights that C.C. testified outside the presence of the jury that she learned about sex
7
through her interactions with him and by watching pornography but that the jury only heard
testimony indicating that she learned about sex through her interactions with him, leaving the
jury “with a false impression of C.C. as a naïve girl who had no knowledge of sexual matters,
until she was assaulted by” him. As support for this characterization of the evidence, Crim
points to testimony from C.C. in which she explained that she had never seen a penis before she
saw his penis and was unfamiliar with female genitalia.
Additionally, Crim contends that the evidence from C.C.’s cellphone was
necessary to establish his defense that she fabricated the events in an effort “to get out of her
current living situation” and to “provide the jury with an alternative source for the descriptions of
the sexual abuse that allegedly involved him.” See Matz v. State, 989 S.W.2d 419, 423 (Tex.
App.—Fort Worth 1999) (explaining that pornography provided “another explanation for T.M.’s
lack of innocence about sexual matters”), rev’d on other grounds, 14 S.W.3d 746 (Tex. Crim.
App. 2000); see also Hammer v. State, 296 S.W.3d 555, 561-62 (Tex. Crim. App. 2009)
(explaining that Rules of Evidence “should be used sparingly to exclude relevant, otherwise
admissible evidence that might bear upon the credibility of either the defendant or complainant”
in sexual-assault cases). Moreover, Crim contends that without this evidence, he was effectively
prevented from presenting his defense.
Even if the trial court abused its discretion by concluding that the evidence was
inadmissible, we would be unable to sustain Crim’s issue on appeal. “Error in the exclusion of
evidence is non-constitutional error subject to a harm analysis under Rule of Appellate Procedure
44.2(b).”
2
Jones v. State, No. 01-15-00717-CR, 2019 WL 3558991, at *6 (Tex. App.—Houston
2 Building on his assertion that the trial court’s ruling violated his constitutional rights,
Crim also contends that any harm analysis conducted in this case should be done under the
8
[1st Dist.] Aug. 6, 2019, no pet.) (mem. op., not designated for publication). Under that Rule,
the error must be disregarded unless it affected the defendant’s substantial rights. See Tex. R.
App. P. 44.2(b). A substantial right is not affected “when, after examining the record as a whole,
the reviewing court has a fair assurance that the error did not influence the jury or had but a
slight effect.” McDonald v. State, 179 S.W.3d 571, 578 (Tex. Crim. App. 2005). In determining
whether a defendant’s substantial rights were affected, the reviewing “court should consider
everything in the record, including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, the character of the alleged error
and how it might be considered in connection with other evidence in the case.” Morales v. State,
32 S.W.3d 862, 867 (Tex. Crim. App. 2000); see Motilla v. State, 78 S.W.3d 352, 355 (Tex.
Crim. App. 2002). “The reviewing court may also consider . . . the State’s theory and any
defensive theories, closing arguments and even voir dire, if applicable.” Motilla, 78 S.W.3d
at 355-56. If the reviewing court, “after examining the record as a whole, has fair assurance that
the error did not influence the jury, or had but a slight effect,” then the defendant’s substantial
rights were not affected. Id. at 355 (quoting Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim.
App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
constitutional-harm standard set out in Rule of Appellate Procedure 44.2(a). See Tex. R. App. P.
44.2(a). However, as set out above, Crim did not present his constitutional claims to the trial
court. See Wong v. State, No. 03-19-00211-CR, 2020 WL 1482457, at *7 n.4 (Tex. App.—
Austin Mar. 27, 2020, pet. ref’d) (mem. op., not designated for publication) (rejecting argument
that erroneous admission of outcry testimony violated defendant’s due process rights and,
therefore, was subject to more stringent constitutional-error review, in part, because defendant
did not make due-process objection during hearing). Moreover, as set out in more detail in the
opinion, the evidence did not form “such a vital portion of the case that exclusion effectively
preclude[d] the defendant from presenting a defense.” See Campbell v. State, 551 S.W.3d 371,
381 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Accordingly, we apply the harm analysis
for non-constitutional errors to the trial court’s evidentiary ruling. See Tex. R. App. P. 44.2(b).
9
For the reasons that follow, we do not believe that the exclusion of the evidence
harmed Crim. First, evidence of Crim’s guilt was presented through multiple sources. During
the trial, C.C. testified regarding multiple instances of sexual abuse. Although there were some
differences in the types of alleged activity described, C.C. provided similar statements regarding
abuse committed by Crim in the recordings of her forensic interview and her conversation with
Detective Dufur. Similarly, the SANE testified regarding her interview with C.C. and although
C.C.’s testimony had some differences from her statement to the SANE, the SANE described
incidents similar to the ones discussed in C.C.’s testimony (e.g., that there were about ten
incidents, including one in Crim’s bedroom, one outside her brother’s window, and one in
Crim’s car).
In addition, a body-camera recording of one of the officers responding to the Crim
house after C.C.’s outcry shows C.C. confronting Crim about the allegations and begging him to
tell the truth. One of the responding officers testified that Crim “seemed very nervous” and
was “pacing back and forth” when he learned of C.C.’s outcry. Moreover, Taylor testified that
C.C. stated that Crim had been “molesting” her and that C.C. was sure that the events occurred.
Additionally, Detective Dufur explained that he reviewed text messages between C.C. and
Schafer during his investigation and that in one of those text exchanges, C.C. stated that Crim
had sexually abused her nine or ten times, which Detective Dufur described as being consistent
with what she said to the police and in her forensic interview.
Second, although Crim contends that the trial court’s ruling prohibited him from
attacking the State’s theory that C.C. learned of the sexual conduct through the abuse and from
pursuing a defensive theory asserting that C.C. learned of the alleged sexual behavior from a
source other than him, the State neither emphasized during its closing argument C.C.’s testimony
10
indicating that she was not knowledgeable about sex nor asserted that C.C. could only have
learned of the sexual acts that she described through the acts of abuse. Instead, the State argued
that C.C.’s various statements in this case were consistent with one another and with her
testimony at trial.
Perhaps more importantly, Crim was able to advance an alternative explanation
for how C.C. learned of the type of sexual activity at issue. During her cross-examination and in
her interview, C.C. stated that the children at her high school in Comal County regularly talked
about sex. In his closing argument, Crim referenced C.C’s prior statements, argued that she
learned through her school friends about the type of sexual activity that she alleged Crim
engaged in, and reasoned that the allegations that C.C. made were consistent with inexperienced
teenage sexual activity because the allegations did not involve completed sexual acts.
Third, through his opening and closing arguments, his cross-examination of the
State’s witnesses, and his calling several witnesses to the stand, Crim was able to present, among
others, the following three defensive theories: (1) that C.C. was not a credible witness, (2) that
C.C. fabricated the allegations to live with her friend Schafer, and (3) that the police did not do
a thorough investigation of this case. Regarding the first defensive theory, when Crim crossexamined Taylor, she admitted that it took her months to believe that C.C. was telling the truth
about the allegations. Similarly, when the State called C.C.’s friends Groesbeck and Schafer to
the stand, they testified that C.C. was not a truthful person, that C.C. had told them about the
alleged abuse, and that they did not believe that the allegations were true. During his case-inchief, Crim’s mother also testified that C.C. was not an honest person and that she would lie to
get out of trouble, and in his testimony, Crim repeatedly denied the allegations and characterized
C.C. as “manipulative” and “devious.” In his closing argument, Crim emphasized that C.C.’s
11
two best friends did not believe her accusations, that Taylor did not believe C.C. for months, that
there were inconsistencies between C.C.’s testimony and the abuse that she described to others,
and that C.C.’s testimony at trial regarding Crim’s actions described less serious misconduct
(e.g., both parties had their clothes on) than she described to law-enforcement officials and
revealed that C.C. was feeling guilty about lying about the abuse.
Regarding the second defensive theory, when Crim questioned Schafer, she
testified that C.C. talked about moving into Schafer’s home for months before making the outcry
and asked Schafer to convince her father to let C.C. move in with them before she made the
outcry. Similarly, Schafer explained that within a few days of C.C.’s outcry, C.C. mentioned
moving into Schafer’s home and that within a few weeks, C.C. and her family moved into
Schafer’s home. Further, Crim testified that he believed that Taylor and C.C. had set him up,
that C.C. repeatedly stated that she wanted to move in with Schafer after the move to Comal
County, and that C.C.’s motive in making the accusations was to move back to San Antonio
and into Schafer’s home. During her cross-examination, C.C. stated that the Comal County
neighborhood where she lived was not nice, that she wanted to move back to San Antonio and go
to high school with Schafer, that she texted with Schafer about encouraging Schafer’s father to
date Taylor, that she and her family moved into the Schafer home within a few weeks of the
outcry, and that Taylor started dating Schafer’s father soon thereafter. In his closing argument,
Crim asserted that C.C. made the allegations in order to move back to San Antonio and be with
her friend Schafer and highlighted the testimony indicating that C.C. discussed moving in with
Schafer before the outcry.
Regarding the third defensive strategy, Crim questioned Detective Dufur about
the thoroughness of his investigation, and Detective Dufur admitted that he did not interview
12
Schafer, Groesbeck, or Groesbeck’s mother; take any photographs of the car where one of
the incidents allegedly occurred; go to the home where C.C. was living and allegedly assaulted;
or get a warrant to search Crim’s cell phone and other electronic devices. In addition, as set
out above, Detective Dufur interviewed C.C. after her forensic interview, and the forensic
interviewer testified in her cross-examination by Crim that it was not the best practice to have
law-enforcement officers interview child victims. Similarly, another police officer involved in
the investigation who was called as a witness by Crim testified that police officers typically
do not interview minors because they are not trained in that type of interaction. In his closing
argument, Crim asserted that Detective Dufur did not interview key witnesses or thoroughly
investigate C.C.’s claims.
Finally, nothing in the testimony about C.C.’s cellphone given by C.C. and
Detective Dufur outside the presence of the jury directly contradicted C.C.’s testimony and
statements to various law-enforcement officials stating that Crim sexually assaulted her on
multiple occasions. And the testimony outside the presence of the jury from those two witnesses
was relatively brief compared to the testimony bearing upon Crim’s guilt. See Castillo v. State,
573 S.W.3d 869, 884 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (op. on reh’g)
(concluding that any error from exclusion of letters written by witness to her father was harmless
because letters did “not contradict her account of molestation” and because it was “unlikely that
a jury confronted with [defendant]’s daughter’s minimal testimony about the letters would have
concluded that their contents were so inconsistent with her testimony that her father molested her
as to significantly undermine its credibility”).
In light of the preceding, we must conclude that any alleged error stemming from
the trial court’s decision to exclude testimony regarding C.C.’s cellphone did not have “a
13
substantial and injurious effect or influence in determining the jury’s verdict” and therefore did
not affect Crim’s substantial rights. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
1997). Accordingly, even assuming that there was error, any error would be harmless, and we,
therefore, overrule Crim’s issue on appeal. See Tex. R. App. P. 44.2(b).
Outcome: Having overruled Crim’s issue on appeal, we affirm the trial court’s judgments
of conviction.
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