Santos Aquileo Cruz-Escalante v. State ( 2015 )

ACCEPTED
01-15-00118-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/27/2015 11:11:21 AM
CHRISTOPHER PRINE
No. 01-15-00118-CR CLERK
In the
Court of Appeals
For the
FILED IN
First District of Texas 1st COURT OF APPEALS
At Houston HOUSTON, TEXAS
8/27/2015 11:11:21 AM

CHRISTOPHER A. PRINE
No. 1311655 Clerk
In the 185th District Court
Of Harris County, Texas

SANTOS CRUZ-ESCALANTE
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
KATIE DAVIS
Assistant District Attorney
Harris County, Texas
State Bar Number: 24070242
davis_katie@dao.hctx.net
CHRISTOPHER HANDLEY
KELLI JOHNSON
Assistant District Attorneys
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5826
Fax Number: (713) 755-5809
ORAL ARGUMENT WAIVED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives
oral argument since it was not requested by appellant. But the State will present
argument if this Court deems it necessary.
IDENTIFICATION OF THE PARTIES
Counsel for the State:
Devon AndersonDistrict Attorney of Harris County
Katie DavisAssistant District Attorney on appeal
Christopher Handley; Kelli JohnsonAssistant District Attorneys at trial
Appellant or Criminal Defendant:
Santos Cruz-Escalante
Counsel for Appellant:
David Garza—Counsel on appeal
Ricardo Gonzalez; Marco Gonzalez—Counselors at trial
Trial Judge:
Honorable Michael Wilkinson Visiting Judge of the 185th District Court
i
TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i
IDENTIFICATION OF THE PARTIES ................................................................................ i
TABLE OF CONTENTS........................................................................................................... ii
INDEX OF AUTHORITIES ................................................................................................... iii
STATEMENT OF THE CASE ................................................................................................. 1
STATEMENT OF FACTS ........................................................................................................ 1
SUMMARY OF THE ARGUMENT ..................................................................................... 3
REPLY TO APPELLANT’S SOLE POINT OF ERROR .................................................... 3
I. Standard of Review and Applicable Law .............................................................. 5
II. The appellant failed to preserve his complaint for appellate review. ............ 6
III. The trial court did not abuse its discretion in limiting the appellant’s cross-
examination. .................................................................................................................. 10
IV. The appellant was not harmed by the trial court’s limitation of his cross-
examination. .................................................................................................................. 14
CONCLUSION ......................................................................................................................... 18
CERTIFICATE OF SERVICE AND COMPLIANCE ......................................................19
ii
INDEX OF AUTHORITIES
CASES
Acevedo v. State,
255 S.W.3d 162 (Tex. App.—
San Antonio 2008, pet. ref’d) .............................................................................................. 9
Apolinar v. State,
155 S.W.3d 184 (Tex. Crim. App. 2005)........................................................................... 6
Chambers v. State,
866 S.W.2d 9 (Tex. Crim. App. 1993)............................................................................... 5
Delaware v. Van Arsdall,
475 U.S. 673 (1986) ................................................................................................................ 5
Harwood v. State,
961 S.W.2d 531 (Tex. App.—
San Antonio 1997, no pet.) ................................................................................................... 8
Ho v. State,
171 S.W.3d 295 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) .............................................................................. 7
Hodge v. State,
631 S.W.2d 754 (Tex. Crim. App. [Panel Op.] 1982) .................................................... 5
Johnson v. State,
419 S.W.3d 665 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d) ................................................................................. 17
Lagrone v. State,
942 S.W.2d 602 (Tex. Crim. App. 1997) ........................................................................ 10
Lape v. State,
893 S.W.2d 949 (Tex. App.—
Houston [14th Dist.] 1994, pet. ref’d) ........................................................................ 12, 13
Linney v. State,
401 S.W.3d 764 (Tex. App.—
Houston [14th Dist.] 2013, pet. ref’d) ..................................................................... 5, 9, 17
Mays v. State,
285 S.W.3d 884 (Tex. Crim. App. 2009) ......................................................................... 7
iii
Motilla v. State,
78 S.W.3d 352 (Tex. Crim. App. 2002) .......................................................................... 16
Potier v. State,
68 S.W.3d 657 (Tex. Crim. App. 2002) ...........................................................................15
Rankin v. State,
41 S.W.3d 335 (Tex. App.—
Fort Worth 2001, pet. ref’d) ............................................................................................... 17
Recer v. State,
821 S.W.2d 715 (Tex. App.—
Houston [14th Dist.] 1991, no pet.).................................................................................. 12
Reyna v. State,
168 S.W.3d 173 (Tex. Crim. App. 2005) ................................................................... 6, 7, 8
Shepherd v. State,
273 S.W.3d 681 (Tex. Crim. App. 2008) .......................................................................... 6
State v. Melcher,
153 S.W.3d 435 (Tex. Crim. App. 2005) .......................................................................... 6
Stults v. State,
23 S.W.3d 198 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d) ............................................................................ 12
Thomas v. State,
669 S.W.2d 420 (Tex. App.—
Houston [1st Dist.] 1984, pet. ref’d) ........................................................................... 12, 13
Valtierra v. State,
310 S.W.3d 442 (Tex. Crim. App. 2010) .......................................................................... 6
Walters v. State,
247 S.W.3d 204 (Tex. Crim. App. 2007) ................................................................. 14, 15
Woods v. State,
152 S.W.3d 105 (Tex. Crim. App. 2004) ........................................................................ 10
STATUTES
TEX. CODE CRIM. PROC ANN.
art. 57.01 (4) (West 2010)..................................................................................................... 1
iv
TEX. CODE CRIM. PROC. ANN.
art. 57.02(h) (West supp. 2014) ......................................................................................... 1
TEX. CODE CRIM. PROC. ANN.
art. 57.03(d) (West 2010) ..................................................................................................... 1
RULES
TEX. R. APP. P. 33.1 .................................................................................................................. 6, 9
TEX. R. APP. P. 33.1(a)(1)(A)..................................................................................................... 7
TEX. R. APP. P. 33.2 ................................................................................................................. 6, 9
TEX. R. APP. P. 33.2(c)................................................................................................................ 7
TEX. R. APP. P. 39.1 ....................................................................................................................... i
TEX. R. APP. P. 44.2(a) ............................................................................................................. 14
TEX. R. APP. P. 44.2(b)............................................................................................................. 16
TEX. R. APP. P. 9.4(g) .................................................................................................................. i
TEX. R. EVID. 103 ................................................................................................................... 9, 16
TEX. R. EVID. 103(a) .................................................................................................................... 6
TEX. R. EVID. 103(a)(2) .............................................................................................................. 7
TEX. R. EVID. 401 ....................................................................................................................... 10
U.S. CONST. amend. VI .............................................................................................................. 5
v
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State charged the appellant with aggravated sexual assault of a child
(CR – 7). The jury found the appellant guilty (CR – 383-85; 4 RR 23). The trial
court sentenced him to 20 years in prison (CR – 384-85; 5 RR 35-36). The
appellant filed a timely notice of appeal, and the trial court certified that he had
the right to appeal (CR – 387-89).
STATEMENT OF FACTS
During the summer of 2010, Jane1 lived with her mother, Zenia Morales (3
RR 140). One day, while riding her bike around the complex, Jane ran into the
appellant (3 RR 160). Jane knew the appellant because he also lived in the same
apartment complex (3 RR 145). The appellant was cleaning his car, and he asked
Jane if she wanted a soda (3 RR 160). Jane said yes, and the appellant took her
upstairs to his apartment (3 RR 160). In his apartment, the appellant pulled down
1
A person “who has access to or obtains the name, address, telephone number, or other
identifying information of a victim younger than 17 years of age may not release or disclose the
identifying information to any person who is not assisting in the investigation, prosecution, or
defense of the case.” TEX. CODE CRIM. PROC. ANN. art. 57.02(h) (West supp. 2014). The term
“victim” means a person who was the subject of: “(A) an offense the commission of which leads
to a reportable conviction or adjudication under Chapter 62; or (B) an offense that is part of the
same criminal episode, as defined by Section 3.01, Penal Code, as an offense described by
Paragraph (A).” TEX. CODE CRIM. PROC. ANN. art. 57.01 (4) (West 2010). The release or
disclosure of such information to any person is a class C misdemeanor. TEX. CODE CRIM. PROC.
ANN. art. 57.03(d) (West 2010). Therefore, the pseudonym “Jane” will be used for the victim in
this case.
Jane’s pants and underwear and made her lay down (3 RR 47, 160). The appellant
put his penis in her anus (3 RR 47-8, 160). Jane felt his penis was first soft and
then hard (3 RR 44). It hurt Jane a little bit (3 RR 165). Jane told the appellant
that her mom was calling for her, and he let her go (3 RR 47-49, 161-63). Jane was
scared to tell her mom (3 RR 164). Jane was six years old at that time (3 RR 66).
In July 2010, Jane went to visit her dad, Marvin Mejia, in New York City (3
RR 66-67). Jane told her sisters what happened to her earlier that summer, and
Jane’s sisters told Mejia (3 RR 67). Eventually, Jane told Mejia what the appellant
did to her (3 RR 67-9). She was upset and emotional while revealing to her father
what the appellant did to her (3 RR 69-70). Mejia had noticed that during her
visit, Jane did not seem happy, and her typical demeanor had changed (3 RR 70).
Mejia took Jane to the hospital immediately (3 RR 70).
Jane met with Teresa Santos, a forensic interviewer, at the child advocacy
center at Montefiore Medical Center in New York City (3 RR 32). Jane told Santos
in detail what the appellant did to her in Houston (3 RR 40-50). Jane told Santos
that the appellant did something bad to her; she stated that he “put his wiener in
my butt.” (3 RR 43). Santos noticed that Jane’s demeanor changed from happy and
active to shy and nervous when she spoke about what the appellant did to her (3
RR 40, 47-48).
2
Dr. Linda Cahill, a specialist in child abuse pediatrics, examined Jane at the
child advocacy center (3 RR 175). See (St. Ex. #22). Dr. Cahill found that Jane had
cauliflower shaped legions on her genitals (3 RR 179-80). She determined that Jane
had contracted the human papilloma virus (HPV), a sexually-transmitted disease
(3 RR 180-83). Dr. Cahill was convinced Jane was a victim of sexual abuse based
on her disclosure and the medical evidence (3 RR 183).
SUMMARY OF THE ARGUMENT
The trial court did not abuse its discretion in limiting the appellant’s cross-
examination of Mejia because the surrounding details of the custody dispute were
not relevant to show any potential bias or animus towards the appellant.
Additionally, any possible error was waived because the appellant failed to explain
why the evidence was relevant and failed to state sufficiently what he would have
asked Mejia. Furthermore, the appellant failed to show harm.
REPLY TO APPELLANT’S SOLE POINT OF ERROR
In the appellant’s sole point of error, he argues that the trial court erred in
excluding evidence, limiting his cross-examination of witnesses. (App’nt Brf. 9-17).
Specifically, the appellant points to his cross-examination of Mejia where the trial
court declined to let him question Mejia about the custody dispute for Jane that
occurred after the allegations of abuse were made (3 RR 80-82). (App’nt Brf. 10-11).
3
The following exchange occurred at the bench during the appellant’s cross-
examination of Mejia:
MR. RICARDO GONZALEZ: Now, Your Honor, there’s – in the
offense report where they talk to this man, basically she – there’s a
custody battle going on.
THE COURT: At what point?
MR. RICARDO GONZALEZ: After his knowledge of this.
THE COURT: Okay. After all this, okay.
MR. RICARDO GONZALEZ: Yes, yes. So they’re fighting for custody
and they set up a custody hearing. There’s a – there was a hearing set
to determine –
MS. JOHNSON: Can you whisper?
MR. RICARDO GONZALEZ: Yes. There was a custody hearing to
determine where the child was going to be in general. Well, he didn’t
show up and basically he said he didn’t show up because the mother
threatened to have him killed.
MR. MARCO GONZALEZ: No, he just – (inaudible).
THE COURT REPORTER: I can’t hear you, Marco.
THE COURT: I don’t think he wants it on the record.
MR. MARCO GONZALEZ: Okay. So there was a custody hearing.
MS. JOHNSON: Can you whisper?
MR. MARCO GONZALEZ: Okay. Sorry. There was a custody
hearing, and, you know, he didn’t show up to the custody hearing so
she got custody to bring the child back to Texas but he also – she
asked the investigator if she could put a protective order against him
because he was threatening to kill the mom, so – but
4
THE COURT: That’s not coming in here.
MR. RICARDO GONZALEZ: Okay. That’s why I approached.
THE COURT: Okay. And my understanding is she’s on the witness
list also, right?
MR. RICARDO GONZALEZ: Yeah.
THE COURT: No, that’s not coming in at this point.
MR. RICARDO GONZALEZ: Okay. All right. Thank you, Your
Honor.
(End of discussion at the bench.) (3 RR 80-82).
I. Standard of Review and Applicable Law
Criminal defendants have a right to cross-examine witnesses, but the trial
court retains wide latitude to impose reasonable limits on cross-examination.
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); Chambers v. State, 866 S.W.2d 9, 27
(Tex. Crim. App. 1993); see also U.S. CONST. amend. VI. “The trial court must
carefully consider the probative value of the evidence and weigh it against the
risks of admission.” Linney v. State, 401 S.W.3d 764, 772 (Tex. App.—Houston [14th
Dist.] 2013, pet. ref’d) (citing Hodge v. State, 631 S.W.2d 754, 758 (Tex. Crim. App.
[Panel Op.] 1982)). The trial court must consider “the possibility of undue
prejudice, embarrassment or harassment to either a witness or a party, the
possibility of misleading or confusing a jury, and the possibility of undue delay or
waste of time.” Hodge, 631 S.W.2d at 758.
5
A trial court’s decision to exclude evidence will be evaluated for abuse of
discretion. Shepherd v. State, 273 S.W.3d 681, 684 (Tex. Crim. App. 2008); Apolinar v.
State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005). An abuse of discretion occurs
when the trial court acts arbitrarily or unreasonably without reference to any
guiding principles. State v. Melcher, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). A
reviewing court views the evidence in the light most favorable to the trial court’s
ruling. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010).
II. The appellant failed to preserve his complaint for appellate
review.
The appellant argues that the trial court erred in limiting his cross-
examination of Mejia. (App’nt Brf. 9-17). Specifically, the appellant argues that
details surrounding a custody dispute between Mejia and Morales could have
provided a motive for the allegations against the appellant. (App’nt Brf. 10-14). But
the appellant failed to preserve his complaint for review.
To preserve error for the exclusion of evidence, the appellant was required
to object, obtain a ruling from the trial court (or object to the trial court’s refusal
to rule), and make an offer of proof. See TEX. R. EVID. 103(a); Reyna v. State, 168
S.W.3d 173, 176–77 (Tex. Crim. App. 2005); see also TEX. R. APP. P. 33.1; TEX. R. APP.
P. 33.2. The appellant was also required to state the reason for his desired ruling
“with sufficient specificity to make the trial court aware of the complaint.” TEX. R.
6
APP. P. 33.1(a)(1)(A); Reyna, 168 S.W.3d at 177 (noting that at the earliest
opportunity the complaining party must have done everything necessary to bring
to the trial court’s attention the evidence rule or statute in question and its precise
and proper application to the evidence in question).
Although the appellant informed the trial court of his desire to question
Mejia about the custody dispute, he failed to explain why the evidence was
relevant and failed to state with sufficient specificity what he would have asked
Mejia (3 RR 80-82). See Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009)
(noting that an offer of proof may be in question and answer format, or may
consist of a concise statement by counsel, but when in the form of a statement, the
offer of proof “must include a reasonably specific summary of the evidence offered
and must state the relevance of the evidence unless the relevance is apparent, so
that the court can determine whether the evidence is relevant and admissible.”);
Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)
(“When a trial court denies a defendant the opportunity to elicit certain specific
responses from a State’s witness, error is preserved by (1) calling the witness to the
stand outside the presence of the jury and asking specific questions or (2) making
an offer of proof that demonstrates what questions would have been asked and the
expected answers to those questions.”); TEX. R. EVID. 103(a)(2); see also TEX. R. APP.
P. 33.2(c) (laying out the procedure to file a formal bill).
7
Additionally, the appellant failed to show how Mejia would have answered
(3 RR 80-82). See Harwood v. State, 961 S.W.2d 531, 538 (Tex. App.—San Antonio
1997, no pet.) (holding that the appellant’s claim the trial court erred in excluding
evidence was not properly preserved for appeal, since nothing in bill of exceptions
showed how the witness would have answered question); Ho, 171 S.W.3d. at 304
(requiring expected answers in order to preserve error for the exclusion of specific
evidence).
Moreover, the appellant failed to assert what legal principle he was relying
on (3 RR 80-82). It is not apparent from the record why the appellant wanted to
question Mejia about the specific circumstances surrounding the custody dispute
(3 RR 80-82). The appellant appears to argue for the first time on appeal that the
custody dispute was relevant to show bias and prevented him from presenting a
meaningful defense of a false accusation (App’nt Brf. 12-13). But the appellant was
required to assert this argument at trial. Reyna, 168 S.W.3d at 177-78 (noting that
the appellant is required to state the grounds for the desired ruling so that the trial
court can have the opportunity to rule upon his rationale).
Furthermore, the appellant did not object to the trial court’s exclusion
based on his constitutional right to present a defense or under the Confrontation
Clause. In fact, the appellant failed to object under any theory after the trial court
8
excluded the testimony (3 RR 80-82).2 See TEX. R. APP. P. 33.1; TEX. R. APP. P. 33.2;
TEX. R. EVID. 103. Therefore, the appellant failed to preserve any complaint
regarding the trial court limiting his constitutional right to cross-examine
witnesses at trial. See Acevedo v. State, 255 S.W.3d 162, 173 (Tex. App.—San Antonio
2008, pet. ref’d) (“To preserve denial of a right to confrontation error, one must
specifically object based on the Confrontation Clause.”).
Finally, although the trial court limited the appellant’s cross-examination of
Mejia, it did not foreclose the opportunity to ask other witnesses about the
custody dispute (3 RR 80-82). The trial court ruled that the details of the custody
dispute were “not coming in here” and asked if Morales was on the witness list (3
RR 82). After learning that she was on the list, the trial court reiterated, “that’s not
coming in at this point.” (3 RR 82). But the appellant never attempted to ask
Morales about any details of the custody dispute during her cross-examination (3
RR 148-52). Morales testified that Mejia tried to get custody of Jane around the
time of the outcry, but the appellant passed her without asking further details (3
RR 151-52). Accordingly, the appellant failed to preserve a complaint for appellate
review. TEX. R. APP. P. 33.1; TEX. R. APP. P. 33.2; TEX. R. EVID. 103; Linney, 401 S.W.3d
at 773-74. Thus, the appellant’s sole point of error should be dismissed.
2
After the trial court indicated that the evidence was not coming in “here,” the appellant
responded, “Okay. That’s why I approached.” (3 RR 82).
9
III. The trial court did not abuse its discretion in limiting the
appellant’s cross-examination.
Even if the appellant preserved error, the trial court did not err in limiting
the appellant’s cross-examination of Mejia. The trial court has the discretion to
limit the scope of cross-examination “to avoid, inter alia, harassment, prejudice,
confusion of the issues, endangering the witness, and the injection of cumulative
or collateral evidence.” Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997).
The appellant appears to argue that mere evidence of a custody dispute is
evidence of animus or bias. (App’nt Brf. 13-15). But without a causal connection
between Mejia’s custody dispute and potential bias, ill will, or animus towards the
appellant, the details were not relevant. See Woods v. State, 152 S.W.3d 105, 111–12
(Tex. Crim. App. 2004) (overruling complaint about limited cross-examination
when proponent’s offer of proof failed to show a nexus between the witness’s
testimony and his sentence); see also TEX. R. EVID. 401.
Evidence of the custody dispute was presented to the jury. Mejia testified
that he fought for custody of Jane and that he did not think Morales was a good
mother (3 RR 78-79). And, as previously stated, Morales testified that she
attended a custody hearing in New York after the allegations were made against
the appellant (3 RR 151-52). Thus, the appellant was not prevented from proving
this possible basis for a bias.
10
The only evidence the jury did not hear was that Mejia failed to appear at
the custody hearing because Morales threatened to have him killed or that
Morales asked an investigator for a protective order against Mejia due to threats
made to her (3 RR 81-82).3 But it is unclear from the record how either situation
showed any bias, ill will, or animus against the appellant (3 RR 81). Mejia did not
know the appellant prior to Jane’s outcry (3 RR 146). Morales testified that the
appellant merely lived at her apartment complex and that she would see him
sometimes when going to her apartment (3 RR 143-45). She had no sexual
relationship or friendship with the appellant (3 RR 143-45). Therefore, the specific
circumstances surrounding the custody dispute were not relevant.
Moreover, the record reflects that the appellant was free to question
Morales regarding her concerns with Mejia during the custody hearing. See (3 RR
81-82, 151-52) (informing the appellant that this evidence is not “coming in at this
point.”). There was no evidence that Mejia knew about her request or exactly
what threats were made. Thus, the trial court did not abuse its discretion by
limiting Mejia’s cross-examination regarding that matter.
Regardless, the jury was aware the custody dispute occurred around the
time of the allegations (3 RR 78-79, 151-52). And the appellant was otherwise
afforded an opportunity for a thorough and effective cross-examination of Mejia (3
3
The record is unclear whether both Mejia and Morales threatened each other or whether only
Mejia threatened Morales or only Morales threated Mejia (3 RR 81-82).
11
RR 74-82). Therefore, no violation of the appellant’s right to confrontation
occurred. See Recer v. State, 821 S.W.2d 715, 717-18 (Tex. App.—Houston [14th Dist.]
1991, no pet.) (holding that the trial court’s limitation of questions to the
complainant by the appellant about specific conversations and conduct with the
appellant’s husband that occurred well before and long after the offense was
reasonable because the extent of the relationship had already been established for
the jury); see also Stults v. State, 23 S.W.3d 198, 204 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d) (noting that limits to cross-examination do not violate the
accused’s right to confront a witness as long as (1) the possible bias and motive of
the State's witness is clear and (2) the accused has otherwise been afforded an
opportunity for a thorough and effective cross-examination).
The appellant relies on Thomas v. State, 669 S.W.2d 420 (Tex. App.—
Houston [1st Dist.] 1984, pet. ref’d) and Lape v. State, 893 S.W.2d 949 (Tex. App.—
Houston [14th Dist.] 1994, pet. ref’d). (App’nt Brf. 13-16). But both cases are
distinguishable. Thomas was accused of sexually assaulting his stepdaughter.
Thomas, 669 S.W.2d at 420. During trial, he sought to admit evidence through
testimony of the complainant and her mother that the complainant had made at
least one prior false accusation of sexual assault. Id. at 422-23. The court of appeals
found that the evidence went to the issue of the complainant’s credibility, and that
12
the trial court’s refusal to allow Thomas to question the complainant on these
matters was error. Id. at 423.
Similarly, Lape was accused of sexually assaulting his stepdaughter. Lape,
893 S.W.2d at 952. His defensive theory was that his estranged wife fabricated the
accusation so that she could obtain custody of their son. Id. Lape offered, but the
trial court excluded, evidence that previous allegations of child abuse dismissed
against Lape because his wife admitted that she lied. Id. at 957-58. And the trial
court excluded the testimony of several witnesses that Lape’s wife threatened that
she would do whatever it took to get custody of the son on several occasions. Id. at
960. The court of appeals held that the trial court abused its discretion by
disallowing the evidence because both the prior false allegation and threats clearly
showed the wife’s mental and emotional state over the custody battle and her
motive to lie about Lape. Id. at 958, 960-61.
Here, conversely, there was no evidence of false allegations or animus
between the appellant and Mejia. Although there was evidence of a custody
hearing, no evidence was presented that Mejia made false allegations in the past or
threatened to make false allegations to gain custody of Jane (3 RR 78). Cf. Lape, 893
S.W.2d at 958-61. In fact, as previously stated, Mejia did not even appear at the
custody hearing in order to challenge Morales for Jane’s custody (3 RR 81-82).
Furthermore, as previously stated, it was unclear whether Morales threatened
13
Mejia’s life or Mejia threatened Morales’s or whether they both threatened each
other (3 RR 81-82). Thus, the excluded evidence did not clearly establish or
support a motive for Mejia to falsify allegations of abuse by the appellant.
Therefore, the trial court did not err in limiting Mejia’s cross-examination.
IV. The appellant was not harmed by the trial court’s limitation
of his cross-examination.
Even if the trial court erred in limiting the cross-examination of Mejia, the
appellant failed to show harm. Although errors resulting from admission or
exclusion of evidence are generally non-constitutional, the appellant appears to
argue constitutional harm because he was prevented from presenting a defensive
theory. See (App’nt Brf. 15-17); Walters v. State, 247 S.W.3d 204, 219 (Tex. Crim. App.
2007); see also TEX. R. APP. P. 44.2(a) (a reviewing court must reverse due to any
constitutional error unless it is determined “beyond a reasonable doubt that the
error made no contribution to the conviction or to the punishment.”).
But, as previously stated, both the custody dispute and the hostility
between Mejia and Morales were established throughout trial from other
evidence. Both Mejia and Morales testified that there was a custody dispute
regarding Jane (3 RR 78-79, 151-52). Mejia testified that he did not think Morales
was a good mother (3 RR 79). And Santos testified that Jane told her that her mom
would hit her (3 RR 54-55).
14
Any additional testimony from Mejia about the details of the custody
dispute was not so vital to the appellant’s defense that its exclusion effectively
precluded him from presenting a defense. See Walters, 247 S.W.3d at 220-22
(finding non-constitutional error when the defendant was prohibited from
offering a second 911 recording that offered an explanation for why he shot his
brother because he was able to present his defense through his and other witness’
testimony).
The appellant presented multiple defensive theories. He argued that Jane’s
details of the assault were inconsistent between the witnesses, pointing to the
differences in her testimony, Santos’s testimony and Mejia’s testimony (4 RR 9).
He argued that he was cooperative with law enforcement because he had nothing
to hide; noting that he offered the officer his medical records to show he never had
HPV (4 RR 9-12). Finally, he argued about the custody battle between Morales
and Mejia (4 RR 13). Because the excluded evidence did not prevent him from
presenting a defense, any error was not of constitutional dimension. See Potier v.
State, 68 S.W.3d 657, 665-66 (Tex. Crim. App. 2002) (holding that although the
erroneously excluded evidence was relevant to the appellant’s self-defense claim,
the exclusion did not prevent him from presenting a defense).
Additionally, the appellant failed to show harm under non-constitutional
error. Under Rule 44.2(b) of the Texas Rules of Appellate Procedure, any non-
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constitutional “error, defect, irregularity, or variance that does not affect
substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b); TEX. R. EVID. 103. If
based on the record as a whole there is fair assurance that the erroneous exclusion
of evidence either had no influence or only a slight influence on the jury,
substantial rights are not affected. Motilla v. State, 78 S.W.3d 352, 355-58 (Tex.
Crim. App. 2002).
Even if the details surrounding the custody dispute had been admitted to
rebut Mejia’s credibility, there was substantial evidence to support the appellant’s
guilt. See Motilla, 78 S.W.3d at 358 (noting that the weight of the evidence of the
defendant’s guilt is also a factor to be considered in a harm analysis). Jane testified
in detail that the appellant coerced her into his apartment, pulled down her pants,
and penetrated her “middle part”4 with his “middle part” (3 RR 160-67). She
explained that this hurt (3 RR 167). Although Jane only testified about the
appellant penetrating her “middle part,” there was testimony from both Santos
and Mejia that Jane told them he also had penetrated her anus (3 RR 40-48, 69-
73). Moreover, Dr. Cahill testified that the distance between a six-year old’s vagina
and anus would only be about an inch, and could easily have contacted both in one
attack (3 RR 192-93).
4
Jane used anatomical dolls to demonstrate that her “middle part” was her vagina, and the
appellant’s “middle part” was his penis (3 RR 161-62).
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Jane provided Santos and Mejia consistent statements regarding her assault
by the appellant (3 RR 46-8, 69). Furthermore, Jane identified the appellant in the
line-up and court as the man who sexually assaulted her (3 RR 105-111, 165). See
(St. Ex. #10-11). Finally, Jane’s testimony was corroborated by her physical exam
that showed she had HPV, a sexually-transmitted disease (3 RR 176-83). See (St.
Ex. #22). Thus, evidence of guilt was overwhelming. See Johnson v. State, 419 S.W.3d
665, 671-72 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d) (holding the victim’s
testimony that the appellant inserted his finger into her vagina itself satisfied the
elements of aggravated sexual assault of a child and was sufficient to support a
conviction).
Because the trial court’s exclusion of the details surrounding the custody
dispute neither effectively precluded the appellant from presenting a defense nor
substantially injured his rights, any error was harmless. See Linney, 401 S.W.3d at
776-77 (holding harmless error when the appellant was not allowed to admit
evidence of the victim’s behavior of sexual acting out and cutting herself began
after boyfriend rejected her); Rankin v. State, 41 S.W.3d 335, 346 (Tex. App.—Fort
Worth 2001, pet. ref’d) (holding harmless error when the appellant was not
allowed to refute the complainant’s testimony that she was not a topless dancer
because he was still able to challenge her credibility with the testimony of three
other witnesses). Thus, the appellant’s sole point of error should be overruled.
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CONCLUSION
It is respectfully submitted that all things are regular and the conviction
should be affirmed.
DEVON ANDERSON
District Attorney
Harris County, Texas
/S/ _Katie Davis_________
KATIE M. DAVIS
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-5826
Fax Number (713) 755-5809
Davis_Katie@dao.hctx.net
State Bar Number: 24070242
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CERTIFICATE OF SERVICE AND COMPLIANCE
This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 4,183 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:
David Garza
102 S. Lockwood
Houston, TX 77011
713-926-4604
713-926-0373/fax
David@davidlgarza.com
/S/ _ Katie Davis _______
KATIE M. DAVIS
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 755-5826
Fax Number (713) 755-5809
Davis_Katie@dao.hctx.net
State Bar Number: 24070242
Date: August 27, 2015
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