Cameron Phillip Esparza v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00196-CR
___________________________
CAMERON PHILLIP ESPARZA, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1510954R
Before Sudderth, C.J.; Gabriel and Kerr, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
In two points, Cameron Phillip Esparza appeals his conviction and resulting
40-year sentence for knowingly causing serious bodily injury to a child. See Tex. Penal
Code Ann. § 22.04(a)(1). He first argues that the trial court violated his right to
confront witnesses against him by wrongly limiting his cross-examination of one of
the State’s witnesses, claiming that he was entitled to delve into that witness’s alleged
racial or ethnic biases; second, he argues punishment-charge error, contending that he
was harmed by the trial court’s including a good-conduct-time instruction when the
nature of his conviction is such that he cannot accumulate good-time credit.
We will affirm.
Background
Because Esparza does not challenge the evidentiary sufficiency underlying his
conviction, we need not recount the facts in great detail. In the summer of 2013,
Esparza had a live-in relationship with H.R., who was the mother of then-one-year-
old L.F. from a previous relationship; the three of them lived at a BudgetStay Suites in
Arlington.1 H.R.’s father (and L.F.’s grandfather), J.R., was an onsite maintenance
man at the BudgetStay, where he and his girlfriend T.D. lived in another unit.2
We use initials rather than actual names for the minor victim and his family
1
members. See Tex. R. App. P. 9.10(a)(3).
2
In his first appellate point, Esparza complains about limits put on T.D.’s
cross-examination.
2
Late in the afternoon of August 1, 2013, H.R., L.F., and Esparza went to eat at
a McDonald’s. L.F. appeared to be fine, by all accounts. The three returned to the
BudgetStay, where H.R. got ready for her job working evenings and nights at a hotel
near the airport. H.R. left L.F. in Esparza’s care around 8:15 p.m. Both J.R. and T.D.
had brief separate interactions with Esparza during the course of the evening, which
each described as involving Esparza’s acting oddly.
Shortly before midnight, J.R. and T.D. saw Esparza again, when he showed up
at J.R.’s apartment and asked to use their phone to call H.R. (Esparza did not have a
working telephone.) After H.R. spoke with either Esparza or J.R. or both—the record
is not entirely clear—H.R. asked J.R. and T.D. to check on L.F.
J.R. and T.D. found L.F. lying on the bed in Esparza and H.R.’s room,
apparently dead. Carrying L.F., they rushed to the motel office and asked Kalpesh
Patel, the manager, to call 911. Patel testified that L.F. appeared to be dead, but Patel
called 911 and relayed instructions from the operator to J.R. about performing CPR
(cardiopulmonary resuscitation) on L.F. According to Patel, J.R. was “not pressing
hard” on L.F., as if he was afraid he might hurt the child, a fear that J.R. confirmed.
J.R. performed CPR on L.F. for only a “few seconds” before an officer arrived and
took over.
At trial, that officer—Officer Peter Hughes—described arriving at the
BudgetStay around 12:25 a.m. on August 2, 2013, and taking over CPR from J.R.
Although L.F. showed “no signs of life,” Officer Hughes performed CPR until the
3
ambulance arrived. When asked why he was doing CPR on a body that was “cold to
the touch,” with “open,” “lifeless” eyes, Officer Hughes responded that “you always
hold out hope for a – for a child.”
L.F. was not resuscitated.
Dr. Tasha Greenberg, who autopsied L.F.’s body, testified that L.F. had visible
injuries, but she opined that he was already dead when CPR was administered. 3 Dr.
Greenberg described multiple small injuries to L.F.’s head, as well as abdominal
bruising and 36 rib fractures that varied in age. L.F.’s liver was lacerated, and his
spleen, lung, and adrenal glands were injured, all of which indicated blunt-force
trauma that occurred before death. In Dr. Greenberg’s opinion, L.F. was probably
already dead when 911 was called and was definitely so by the time the paramedics
arrived.
The jury charge instructed the jury on capital murder and on four lesser-
included offenses. The jury returned a guilty verdict on the lesser-included offense of
knowingly causing serious bodily injury to a child and, after the trial’s punishment
phase, recommended that Esparza be sentenced to 40 years’ imprisonment on this
first-degree felony. See Tex. Penal Code Ann. § 22.04(e). The trial court sentenced
Esparza accordingly.
3
Esparza theorized at trial that J.R. had performed CPR too vigorously, fatally
injuring L.F. J.R. himself testified that he “felt like [he] did something wrong” and
expressed regret: “And I still do [feel that way], I’m sorry.”
4
Appellant’s Arguments
Esparza has framed his two “points of error” this way:
• “Appellant’s right to confront the witnesses against him was violated when the
trial court limited his cross[-]examination of a State witness.”
• “The trial court’s jury charge on punishment is violative of Appellant’s rights to
due process and due course of law.”
Discussion
Point One: Right to confront witnesses.
We review for an abuse of discretion a trial court’s decision to exclude evidence
by, for example, limiting cross-examination, and we will uphold that decision if it falls
within the “zone of reasonable disagreement.” Johnson v. State, 490 S.W.3d 895,
908 (Tex. Crim. App. 2016). A defendant’s Sixth Amendment right to confront the
witnesses against him, while broad, is not unfettered. Id. at 909–10; U.S. Const.
amend. VI. Rather, a trial court may impose reasonable limits on confrontation—that
is, on cross-examination—if concerns exist about such things as “harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive
or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct.
1431, 1435 (1986); Johnson, 490 S.W.3d at 910. Nonetheless, although a defendant
does not have an “absolute right to impeach” a witness’s general credibility, “the
Constitution could be offended if a state evidentiary rule prohibited the defendant
from cross-examining a witness concerning possible motives, biases, and prejudices to
5
such an extent he could not present a vital defensive theory.” Johnson, 490 S.W.3d at
910.
Here, the trial court did not allow Esparza to cross-examine T.D. about her
racial or ethnic biases. T.D. was the only witness to testify that on the night L.F. died,
Esparza had allegedly told her that “he didn’t want the baby no more. He didn’t want
to take care of the baby no more.” 4 Particularly because of that single-sourced
comment, Esparza contends that it was critical that he be allowed to cross-examine
T.D. about a pretrial statement she had volunteered to one of the prosecutors, which
the prosecutor memorialized in an undated email sent to defense counsel before the
trial started: “[T.D.] has said that she is kind of a racist. But she does not have a
problem with Mexicans.”5
After Esparza told the trial court that he intended to cross-examine T.D. about
that sentiment when trial resumed the next morning,6 both Esparza and the State
questioned T.D. outside the jury’s presence, eliciting the following information:
T.D. also claimed that J.R. had performed CPR properly on L.F., testimony
4
that BudgetStay manager Patel corroborated by saying that J.R. was “not pressing
hard” on L.F. and seemed to be afraid of hurting him during the “few seconds” J.R.
administered CPR before the officer arrived.
T.D. is Caucasian, as are J.R. and H.R. L.F. had a Hispanic father and so was
5
of mixed ethnicity, and Esparza is Hispanic.
6
It was at the end of a day of trial when Esparza voiced his intent to “get . . .
into that” subject with T.D. the next morning, to which the trial court responded,
“Well, let’s go ahead and do it now. Go ahead and make your bill on her right now.”
6
• T.D. had been “raped several times by a black person”;
• T.D. was raised by a stepfather who “did not like blacks”;
• Her stepfather’s being “racist” was a “big thing in [her] family for a while”;
• T.D. was prejudiced only against “[b]lacks,” although she had been raised “not
to mix colors, you know, like whites stay with white, Mexicans stay with
Mexican,” but that was a view T.D. had held “when [she] was growing up with
[her] family”;
• Age 52 at the time of trial, T.D. was “different now,” “[n]ot really” believing
anymore that races should not mix (though she equivocated);
• T.D. was not bothered by the fact that H.R. and Esparza were a “mixed
couple”; but
• T.D. could not explain why she had volunteered to the prosecutor that she was
“a little bit racist, kind of racist.”
After the State objected on relevance and improper-impeachment grounds to
the jury’s hearing this proposed testimony, the trial court broadly sustained the State’s
objections:
THE COURT: Well, it is improper impeachment. It is
impeachment on collateral matter. It’s collateral impeachment. That’s
what it really is.
[DEFENSE COUNSEL]: Your Honor, it shows bias or
prejudice.
THE COURT: Yeah, not against your client, it didn’t.
Esparza did so, and he and the State questioned T.D. more the next day, again outside
the jury’s presence.
7
It’s also a 412 violation. You are not going to get into this – this
witness’s being raped or – or anything like that. So you’re not going to
ask it.
And I’m going to make a finding that the probative value is
substantially outweighed by the prejudicial effect. Whether – whether or
not she was raised one way doesn’t have any relevance in this case.
It’s – it’s either – so I’ll sustain the [objection] either on relevance
and/or on impeachment on a collateral matter or collateral
impeachment.
Esparza did not make a Confrontation Clause or other constitutional argument
in the trial court for why T.D.’s testimony was ostensibly admissible, asserting only
that her testimony, if allowed, would reveal her bias or prejudice.
As with many error-preservation situations, a defendant must first have
objected in the trial court before he may complain on appeal, even about an alleged
constitutional infringement such as a Confrontation Clause violation. See Craven v.
State, 579 S.W.3d 784, 788 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (“Because
appellant failed to raise his Confrontation-Clause objection at the time the lab report
was offered into evidence, appellant has waived this complaint on appeal.”). Similar to
a recent case from the court of criminal appeals, “[n]othing in the record indicates
that Appellant properly put the trial judge on notice that he was making a
Confrontation Clause argument in support of admitting the excluded evidence.”
Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App. 2018). We conclude that
Esparza did not preserve his constitution-related appellate complaint.
8
Even so, assuming that Esparza had preserved his complaint, a trial court may
exclude evidence that is “only marginally relevant.” Van Arsdall, 475 U.S. at 679,
106 S. Ct. at 1435. Whether T.D. was biased against African-Americans was irrelevant
to whether she was motivated to testify falsely against Esparza, a Hispanic man. See
Gonzales v. State, 929 S.W.2d 546, 551 (Tex. App.—Austin 1996, pet. ref’d) (holding no
abuse of discretion when the trial court kept out evidence of a witness’s racial and
ethnic slurs against African-Americans and Hispanics, which he uttered while kicking
an African-American detainee; the statements were more probative of prejudice
against African-Americans than against the defendant’s ethnic group and were of
“marginal relevance”). And Esparza did not show how T.D.’s prejudice against mixed
racial or ethnic couples—assuming she still had any—played any role in her
testimony. See Van Arsdall, 475 U.S. at 679, 106 S. Ct. at 1435 (“[T]rial judges retain
wide latitude insofar as the Confrontation Clause is concerned to impose reasonable
limits on such cross-examination based on concerns about, among other things,
harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation
that is repetitive or only marginally relevant.”); Martinez v. State, No. 14-98-01138-CR,
2000 WL 767825, at *5, *6 (Tex. App.—Houston [14th Dist.] June 15, 2000, pet.
ref’d) (not designated for publication) (noting that a party wishing to impeach a
witness for bias must “attempt to show that the witness’s attitude is such that he is
likely to favor or disfavor a particular litigant’s position for reasons unrelated to the
merits of the suit,” and holding that appellant failed to show (1) that the witness’s
9
“outbursts demonstrated bias or prejudice against homosexuals in general” and
(2) that the outbursts showed that the witness was “falsely testifying against appellant
because he hated homosexuals”).
Because Esparza has not preserved his complaint and has not shown an abuse
of discretion here even if he had, we overrule his first point.
Point Two: Jury charge on punishment.
Esparza next complains that the punishment charge harmed him by instructing
the jury that “if sentenced to a term of imprisonment, [Esparza] may earn time off the
period of incarceration imposed through the award of good conduct time.” The
offense of which Esparza was convicted, though, precludes accumulating good-
conduct credit for parole purposes. See Tex. Gov’t Code Ann. § 508.145(d)(1)(A); Tex.
Code Crim. Proc. Ann. art. 42A.054(a)(10). Nonetheless, the Code of Criminal
Procedure mandates this instruction’s wording, as Esparza concedes, even if it is futile
and potentially confusing in a case such as this one. See Tex. Code Crim. Proc. Ann.
art. 37.07, § 4(a); Luquis v. State, 72 S.W.3d 355, 363–65 (Tex. Crim. App. 2002); Knight
v. State, 504 S.W.3d 524, 532 (Tex. App.—Fort Worth 2016, pet. ref’d). Esparza
acknowledges that controlling precedent is against him but has raised this issue solely
to preserve it for further review.
Our earlier discussion of Luquis answers this issue with a brevity that we cannot
improve upon, and so we will simply quote it:
10
Luquis held that the instruction required by article 37.07, section
4(a) does not violate a defendant’s due process or due course of law
rights. In so holding, the court noted that the statutorily[]provided
instruction “informs the jury of the existence of good conduct time,
briefly describes that concept, and explicitly tells the jury not to apply
that concept to the particular defendant” and that we assume that the
jury followed the instructions as given. We do not have discretion to
reject the holdings of the court of criminal appeals. We therefore
overrule Appellant’s second point.
Knight, 504 S.W.3d at 532 (citations omitted). We overrule Esparza’s second point.
Conclusion
Having overruled Esparza’s two appellate points, we affirm the judgment
below.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: October 31, 2019
11