Jerad Lee Reamy v. the State of Texas

NO. 12-23-00234-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JERAD LEE REAMY, § APPEAL FROM THE 369TH
APPELLANT

V. § JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE § CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Jerad Lee Reamy appeals his conviction for aggravated sexual assault. He presents three
issues on appeal. We affirm.

BACKGROUND
Appellant was charged by indictment with three counts of aggravated sexual assault. The
State alleged that Appellant exhibited a firearm while sexually assaulting his wife, Kimberly, in
August 2021. He pleaded “not guilty,” and the matter proceeded to a jury trial.
At the time of the offense, Kimberly and Appellant were discussing potential divorce,
which has since been finalized. At trial, Kimberly testified that the couple was scheduled to
attend a counseling session on August 13, 2021, but it was cancelled. The couple, alone in their
Jacksonville home, discussed divorce and then Appellant asked Kimberly to have sex. She
declined. According to Kimberly, Appellant kept asking and she repeatedly declined. Then
Appellant displayed a handgun and ordered her to put her hands in front of her while he bound
her wrists with duct tape. While keeping the gun pointed at her, he forced her to the rear of the
house where he cut off her clothes and made her perform oral sex. Appellant then raped her
vaginally and anally.
Appellant testified in his own defense at trial. According to Appellant, the entire
encounter was consensual. He claimed that the couple agreed this would be the last time that
they had sex, and they should act “like they did in 50 Shades of Gray.” Appellant testified that
Kimberly did not resist when he cut off the duct tape and placed it around her wrists. He further
testified that he only began to cut her shirt because her taped wrists prevented the shirt from
being lifted over her head. However, he said that he stopped cutting it when she said that she did
not want it ruined. At that point, Appellant claims he removed the tape, which meant Kimberly’s
wrists were not taped while the couple had sex. He denied exhibiting a gun.
Ultimately, the jury found Appellant “guilty,” and sentenced Appellant to forty years
imprisonment. 1 This appeal followed.

PREVIOUS SEXUAL ACTIVITY
In his first issue, Appellant contends the trial court abused its discretion when it excluded
evidence of Kimberly’s sexual activity with her boyfriend.
Standard of Review and Applicable Law
We apply an abuse of discretion standard when reviewing issues relating to the trial
court’s admission of evidence. Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006). “If
the ruling was correct on any theory of law applicable to the case, in light of what was before the
trial court at the time the ruling was made, then we must uphold the judgment.” Id. Appellate
courts will uphold a trial court’s ruling on the admissibility of evidence as long as the trial court’s
ruling was at least within the “zone of reasonable disagreement.” Id. (citing Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)).
In a sexual assault case, opinion or reputation evidence of a victim’s past sexual behavior
is not admissible. Alford v. State, 495 S.W.3d 63, 66-67 (Tex. App.—Houston [14th Dist.] 2016,
pet. ref’d) (citing TEX. R. EVID. 412(a)). Evidence of specific instances of the victim’s previous
sexual conduct may be admitted in certain enumerated circumstances, including when the
evidence relates to the victim’s motive or bias. TEX. R. EVID. 412(b)(2)(C). However, the
probative value of that evidence must outweigh the danger of unfair prejudice. TEX. R. EVID.
412(b)(3). Evidence of a victim’s sexual history is to be highly scrutinized for its probative

1
Appellant was tried twice. The first trial resulted in a mistrial after the jury failed to reach a unanimous
verdict.

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value. Cofer v. State, No. 07-04-0383-CR, 2005 WL 3488935, at *2 (Tex. App.—Amarillo Dec.
21, 2005, no pet.) (mem. op., not designated for publication) (citing Allen v. State, 700 S.W.2d
924, 929 (Tex. Crim. App. 1985); Burks v. State, 40 S.W.3d 698, 699 (Tex. App.—Waco 2001,
pet. ref’d)).
Under Rule 412(b)(3), the proponent of the evidence bears the burden to show the
probative value of the evidence outweighs the unfair prejudice of admitting it. Stephens v. State,
978 S.W.2d 728, 733 (Tex. App.—Austin 1998, pet ref’d). The balancing test under Rule
412(b)(3) “weighs against the admissibility of evidence.” Id.
Analysis
Outside the jury’s presence, Appellant testified regarding a sexual encounter and new
relationship between Kimberly and her boyfriend, Justin McCarty. He testified to learning of an
adulterous sexual encounter between Kimberly and McCarty through a text message from
Kimberly. He also claimed to have confirmed Kimberly’s claims through messages with
McCarty. Appellant testified that the content of those messages showed that Kimberly and
McCarty planned to move in together and prevent him from seeing his children. Appellant had
no records of the messages. He offered a copy of Kimberly’s cell phone call log showing a
phone call to or from McCarty. Appellant argued that the existence of Kimberly’s relationship
with McCarty provided evidence of a motive for her to lie about the assault. At the conclusion of
the hearing, the trial court found that Appellant had not met his burden under Rule 412 and that
the evidence is more prejudicial than probative even if it met the rule’s requirements.
When the defendant seeks to admit evidence of past sexual behavior because it relates to
the complainant’s motive or bias, the defendant must “demonstrate a definite and logical link
between the complainant’s past sexual conduct and the alleged motive and bias.” Stephens, 978
S.W.2d at 735; see also Todd v. State, 242 S.W.3d 126, 129 (Tex. App.—Texarkana 2007, pet.
ref’d). Appellant’s evidence suggesting that Kimberly falsely accused him is extremely thin.
Appellant did not demonstrate a definite and logical link between Kimberly’s past sexual
conduct and the alleged motive under Rule 412(b)(2)(C). See Stephens, 978 S.W.2d at 735. As
a result, the trial court did not abuse its discretion in excluding the evidence.
Furthermore, Appellant relied on hearsay statements to support his theory. Rule 412
cannot be used to get otherwise inadmissible hearsay before the jury. See Burks, 40 S.W.3d at
701; Kennedy v. State, 184 S.W.3d 309, 315 (Tex. App.—Texarkana 2005, pet ref’d). Therefore,

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even if the trial court incorrectly applied Rule 412, we would uphold its ruling on this alternate
theory. Kennedy, 184 S.W.3d at 935.
Based on the foregoing, we overrule Appellant’s first issue.

REMAINING ISSUES
In his second issue, Appellant contends the trial court erroneously allowed the State to
attack his credibility in violation of Texas Rule of Evidence 404. And Appellant argues in his
third issue that the State improperly commented on his Fifth Amendment right to remain silent.
To preserve a complaint for our review, a party must have presented to the trial court a
timely request, objection, or motion that states the specific grounds for the desired ruling if they
are not apparent from the context of the request, objection, or motion. TEX. R. APP. P.
33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009). Further, the trial
court must have ruled on the request, objection, or motion, either expressly or implicitly, or the
complaining party must have objected to the trial court’s refusal to rule. TEX. R. APP. P.
33.1(a)(2); Mendez v. State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). An appellant’s
complaint on appeal must comport with the objection made at trial. Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012). A reviewing court should not address the merits of an issue
that has not been preserved for appeal. Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App.
2010) (op. on reh’g).
On cross examination, the State questioned Appellant regarding a biological child he
fathered and previous statements by which he represented himself as a law enforcement officer.
On appeal, Appellant contends this questioning was inadmissible under Texas Rule of Evidence
404. However, at trial, Appellant lodged a relevancy objection to the questions regarding his
child and did not object to the questions about his misrepresentations. Appellant’s Rule 404
complaints are therefore not preserved because he failed to object on that basis in the trial court.
See TEX. R. APP. P. 33.1(a)(1); Medina v. State, 7 S.W.3d 633, 643 (Tex. Crim. App. 1999)
(relevancy objection does not preserve Rule 404 claim). We overrule Appellant’s second issue.
During Appellant’s presentation of evidence, Appellant testified that his neighbor had a
security camera pointed at his household. He further testified that he previously provided a copy
of his neighbor’s security footage to Jacksonville Police for an investigation into theft of
packages. On cross-examination, the State questioned Appellant as to why he failed to mention

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this security camera to law enforcement related to this offense. And during its argument, the
State, alluding to the supposed security footage, mentioned being “skeptical” of evidence heard
for the very first time at trial. On appeal, Appellant contends this constituted an improper
comment on his right to remain silent. However, Appellant failed to object during either cross
examination or jury argument. As such, Appellant failed to preserve this issue for our review.
See McCallister v. State, No. 14-04-00375-CR, 2006 WL 461465, at *2 (Tex. App.—Houston
[14th Dist.] Feb. 28, 2006, pet. ref’d) (mem. op., not designated for publication) (citing
Wheatfall v. State, 882 S.W.2d 829, 836 (Tex. Crim. App. 1994)) (Fifth Amendment right is
forfeitable and must be preserved by objection); see also Hernandez v. State, 538 S.W.3d 619,
622-23 (Tex. Crim. App. 2018) (must preserve improper jury argument claim via objection at
trial). Therefore, we overrule Appellant’s third issue.

DISPOSITION
Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s
judgment.

BRIAN HOYLE
Justice

Opinion delivered October 31, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

OCTOBER 31, 2024

NO. 12-23-00234-CR

JERAD LEE REAMY,
Appellant
V.
THE STATE OF TEXAS,
Appellee

Appeal from the 369th District Court
of Cherokee County, Texas (Tr.Ct.No. 21939)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the
judgment of the court below be in all things affirmed, and that this decision be certified to the
court below for observance.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.