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Click here for the full text of this decision FACTS:On June 12, 2002, H.F., a 9-year-old girl, attended a sleepover at Eric Paul Michael’s house. She slept in a guest bedroom with Michael’s two daughters. That night, Michael entered the room at approximately 1 a.m. He knelt by H.F’s sleeping bag, pulled down his shorts, and began to masturbate. Michael tried to get H.F. to touch his penis and eventually started performing oral sex on her. H.F. did not report this to anyone. Several months later while watching an episode of “The Practice” about a girl who had been raped, H.F. told her mother that Michael had “licked” her vagina. H.F.’s mother reported the assault to the police who eventually referred her to the National Alliance for Children (NAC). At NAC, H.F. was interviewed about the assault. This interview was recorded on videotape. During trial, Michael’s defense attorney impeached H.F.’s direct testimony on cross-examination by several previous inconsistent statements from her recorded interview at NAC. Specifically, H.F. admitted that she told the interviewer that the room was extremely small and she did not see how Michael “could have done anything.” H.F. admitted that she never told the interviewer that Michael rolled her on her back, despite being asked specifically that question. H.F. also admitted that she told the NAC interviewer that Michael’s penis was “hanging down,” while her direct testimony was that it was “sticking out.” Finally, H.F. admitted that, during the interview, she stated that the entire attack occurred while she was on her left side, which was inconsistent with her in-court direct testimony. During rebuttal the state called Stacy Turner, H.F.’s former teacher and babysitter, to testify about her opinion as to H.F.’s character for truthfulness. The trial defense counsel objected, stating that the character of H.F. had not been attacked. The trial judge overruled the objection, and Turner was permitted to testify. She testified that she taught H.F. in the second grade and later babysat H.F. the following fall, and in her opinion H.F.’s character for truthfulness was good. The trial court convicted Michael of aggravated sexual assault and indecency with a child. Michael challenged his conviction on the grounds that the testimony of Turner improperly bolstered the testimony of H.F., the state’s essential witness, resulting in his conviction. Michael argued that impeaching H.F. with her previous statements to the NAC interviewer was not an attack on her character that would permit rebuttal evidence of character for truthfulness. The 2nd Court of Appeals disagreed and affirmed the conviction. HOLDING:Vacated and remanded. Impeaching a witness with a prior inconsistent statement, the CCA stated, is not necessarily an attack on credibility that would allow rehabilitative evidence of character for truthfulness under Texas Rule of Evidence 608(a). The court then addressed “why a cross-examination with prior inconsistent statements is not necessarily an attack on character, as well as what factors a trial judge should examine to determine whether an attack has occurred and if character evidence as to truthfulness should be permitted.” When a witness’ credibility has been properly impeached, the CCA stated that the sponsoring party may rehabilitate the witness only in direct response to the attack. Generally, a witness’ character for truthfulness may be rehabilitated with “good character” witnesses only when the witness’ general character for truthfulness has been attacked. Impeachment by a previous inconsistent statement, the CCA stated, is normally just an attack on the witness’ accuracy, not his character for truthfulness. There are circumstances, the CCA noted, where the cross-examiner’s intent and method clearly demonstrate that he is not merely attacking the conflict in the witness’ testimony between one or more specific facts, but mounting a wholesale attack on the general credibility of the witness. If the inconsistent statement is used to show that the witness is of “dishonest character,” then it follows that the opposing party should be allowed to rehabilitate this witness through testimony explaining that witness’ character for truthfulness. Alternatively, if this testimony is used to show some other defect, then such evidence should not be allowed. The Federal Rules of Evidence modified the common-law position held by some states, including Texas, that allowed rehabilitation evidence of truthful character when the witness was impeached by self-contradiction. Although the text of Federal Rule 608(a) does not make an explicit delineation between impeachment by self-contradiction and other forms of impeachment, the advisory committee notes state: “Whether evidence in the form of contradiction is an attack upon the character of a witness must depend in part upon the circumstances.” Texas Rule 608(a) is interpreted the same as Federal Rule 608(a), the CCA stated. Some courts, the CCA stated, have held that rehabilitation should be permitted when the witness is subject to a “slashing cross-examination.” The CCA, however, stated that the question should not be whether the cross-examination was “slashing” but whether the overall tone and tenor of the cross-examination implied that the witness is a liar. Thus, the CCA held that the question for the trial judge in this case was whether a reasonable juror would believe that the witness’ character for truthfulness had been attacked by cross-examination, evidence from other witnesses or statements by counsel. OPINION:Womack, J., delivered the opinion of the court, in which Meyers, Price, Johnson, Hervey, Holcomb, and Cochran, JJ., joined. CONCURRENCE:Keller, P.J., and Keasler, J., concurred in the judgment without a written opinion.

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