IN THE COURT OF CRIMINAL APPEALS

OF TEXAS


NO. 677-99

RUDOLFO LOPEZ, Appellant


v.


THE STATE OF TEXAS



ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTH COURT OF APPEALS

BEXAR COUNTY
Mansfield, J., delivered the concurring opinion.


C O N C U R R I N G  O P I N I O N


While I wholeheartedly agree with much of the well-written opinion of the majority and agree with the result it achieves, I cannot agree that a defendant accused of committing a sexual offense may not introduce evidence of prior accusations made by the complainant alleging commission of sexual offense(s) subsequently determined to be false.

The area of sex offenses is unique, having many aspects not found in connection with other offenses. First, in many cases, there is often little physical evidence and it often comes down to the word of the accuser versus that of the defendant. Often, the accuser is a young child whose memory may be limited or whose version of what may have actually occurred has been influenced by others with an agenda. (1) In some instances, the accuser and the defendant know each other, and the accusation is motivated by financial considerations (i.e., blackmail), later regret over what was a "voluntary" sexual encounter involving alcohol or drug consumption, or retaliation for being "dumped." Merely being publicly accused of a sex offense is devastating and results nearly always in the destruction of the reputation of the person (nearly always a male) so accused, even if subsequently found innocent. After all, the accused, but rarely the complainant, is the one whose name appears in print.

Given the above, fundamental fairness and due process require that the defendant charged with a sex offense be entitled, on cross-examination, to impeach the complainant with evidence that he/she has falsely accused others of having committed sex offenses against him/her. I would require the defendant, at the time the complainant is about to commence testifying, to inform the court, outside the presence of the jury, that he/she intends to introduce evidence of prior false accusations of sex offenses made by the complainant. The court would then be required to conduct a hearing, outside the presence of the jury, to evaluate said evidence and to determine if it is admissible. (2) Its ruling would be subject on appeal to an abuse of discretion standard.

With these comments, I concur in the judgment of the Court.



DELIVERED MAY 3, 2000

PUBLISH

1. I note particularly the false charges of child sexual abuse that have resulted from "junk science" such as repressed memory syndrome and in divorce cases where such charges are used occasionally as a form of extortion to gain a favorable outcome with respect to custody and/or property division. I also acknowledge, however, that many bona fide cases involving sex crimes are not reported, for various reasons.

2. I agree with the opinion of the majority that evidence of prior false accusations of sexual misconduct, to be admissible, must be "clear and convincing."