Francisco J. Trujillo-Camacho v. State ( 2018 )

AFFIRM; and Opinion Filed October 22, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00735-CR
FRANCISCO J. TRUJILLO-CAMACHO, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 004-84704-2016
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang-Miers
Opinion by Justice Lang-Miers
Appellant Francisco J. Trujillo-Camacho was convicted by a jury of misdemeanor assault.
Appellant was subsequently sentenced, in accordance with a plea bargain agreement, to 150 days
in jail, probated for 12 months.1 Appellant claims on appeal that the trial court improperly limited
his cross-examination of the complainant. We affirm.
Background
On April 14, 2016, Carlos Chavarria and appellant were both playing on opposing teams
in an adult soccer game at Blue Sky Sports Center in Allen, Texas. Chavarria was playing forward
1
As a condition of his plea bargain, appellant waived his right to appeal his punishment. Appellant has limited
his appeal to alleged error at the guilt-innocence phase of the trial.
and appellant was defending against him; both were going towards the goal when they got into an
altercation on the field. What exactly led to the altercation was in dispute: Chavarria claimed that
appellant was “getting in his face” as he was trying to talk to the referee by shoving him and trying
to fight him while appellant testified that Chavarria was playing overly aggressively, hitting him
repeatedly in a leg that had been previously injured, and shoving him when appellant told
Chavarria “you don’t have to play like that.” Both men got “yellow cards” from the referee and
were sent to their respective penalty boxes.
Chavarria testified that, on the way to the penalty boxes, appellant said, “Let’s take this
outside.” Although Chavarria initially agreed and began following appellant out of the facility, he
changed his mind. He testified that he told appellant, “I’m not stupid, I haven’t done anything to
you, I don’t want to fight you.” Chavarria turned around and began walking back onto the field.
Sensing appellant “coming at me,” Chavarria turned around. Appellant lunged at him, “head-
butting” him with his forehead between Chavarria’s nose and his lip. One of Chavarria’s teeth fell
out. A teammate of Chavarria’s who was either a dentist or a dental assistant put the tooth back in
its socket in the hopes of preventing the tooth from dying. Another tooth was chipped and broken.
His face bled for about thirty minutes, he felt pain for about twelve hours, and he had to have
stitches in his lip. His injuries necessitated a lot of expensive dental work.
Conner McCoy, the game’s scorekeeper, corroborated Chavarria’s account of the assault.
McCoy did not see appellant and Chavarria fighting, but he did see them both receive yellow cards
for a “field argument, probably a little bit of shoving.” McCoy watched the two argue on the way
to their penalty boxes; he believed they agreed to go outside and fight. When Chavarria reached
the exit, he backed up and walked away from appellant toward his penalty box. Appellant then
quickly walked up to Chavarria, grabbed him by the shoulders, and “head-butted” him, striking
Chavarria in the teeth with his forehead.
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The referee who yellow-carded appellant and Chavarria, Steve McClure, recalled the
altercation on the field: “Because there was a foul of somebody . . . it seemed to make them both
very mad. And they started to kind of pushing and shoving, so we blew our whistles and then
issued yellow cards for those guys to cool off in the penalty box.” Appellant and Chavarria were
talking as they exited the field; while McClure could not hear what they were saying, it looked to
him like they might be going outside, presumptively to fight. At some point both turned around
and started walking towards each other. Both men had their hands at their sides and it did not look
to McClure like either was going to throw a punch. McClure saw appellant “head-butt” Chavarria.
Appellant was tackled by Chavarria’s teammates and a “tussle” ensued. The referee called the
game. A “red card” was ultimately issued to appellant which resulted in his suspension for one
year from Blue Sky.
Appellant provided a different account of these events in an effort to show that Chavarria’s
injuries were accidentally inflicted. Appellant testified that Chavarria was an overly aggressive
player who, during the game, had knocked some of appellant’s teammates down, repeatedly kicked
appellant in his previously injured leg, and laughed when appellant told him to stop. Appellant
testified that Chavarria instigated the altercation. While they were walking off the field towards
the penalty boxes, Chavarria was following him closely and calling him names. Appellant thought
that Chavarria was trying to provoke him and “get me angry because he was in front of his
teammates.” When appellant finally turned around, Chavarria also turned around and started
walking away, but then turned again to face appellant. As appellant testified: “His hands went up
. . . I thought he was going to punch me, and I didn’t want to get punched.” Appellant, who testified
that he really believed that he was threatened by Chavarria and that Chavarria was going to hit
him, intended to pick Chavarria up and then put him down. As they came at each other, appellant’s
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head accidentally hit Chavarria’s teeth. Appellant denied that he intended to strike Chavarria,
stating he only planned to grab and tackle him in self-defense.
Appellant presented the testimony of three of his teammates – Omar Munoz, Lenny
Alvarez, and Bobby Desi – who had witnessed the altercation and supported appellant’s version
of events.
Munoz had played soccer against Chavarria a number of times. He described Chavarria as
a player who “talks a lot of . . . smack,” likes to initiate conflict, and provokes players on the
opposing team. Munoz, who witnessed the fight from the team bench, saw appellant and Chavarria
exchanging words and “making human contact” but not shoving. He heard appellant tell Chavarria
to “go back to your bench” and saw appellant wave him off. Munoz stated that Chavarria did not
relent and “bumped” appellant all the way to his team bench and then pushed appellant “through
the gut.” Appellant threw his arms out like he was trying to tackle Chavarria. Munoz did not
believe that appellant intentionally “head-butted” Chavarria and thought the altercation was
Chavarria’s fault.
Alvarez, who watched the game from the bleachers, testified that he had played against
Chavarria before and described him as a good but physical player who does not like to lose and
who can become aggressive. Alvarez testified that during the game Chavarria got frustrated and
became more physical and aggressive when appellant took the ball from him. He testified that he
saw Chavarria repeatedly kick appellant in the legs during the game. Eventually, the referee gave
both appellant and Chavarria yellow-cards. Chavarria followed appellant “really close” to his
bench. Alvarez testified that he saw Chavarria “puff up” and go towards appellant; he thought
Chavarria was going to punch appellant. Both men lunged at each other and their heads collided.
Alvarez thought neither of them intended to “head-butt” the other and that Chavarria, not appellant,
provoked the confrontation.
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Desi had played soccer against Chavarria and described him as a fast, physical, overly
aggressive player. He testified that Chavarria “mouths off to players” when he gets frustrated. Desi
was playing goalie on April 14, 2016, and had the entire field in his view. Desi testified that
Chavarria got more aggressive as the game progressed and he saw Chavarria “mouthing off” to
appellant. In Desi’s opinion, appellant was just trying to defend and was not hot-tempered; Desi
did not see him be aggressive against Chavarria. Desi saw Chavarria follow appellant almost “into
the bench” to “go towards the boxes.” He noticed a commotion, but did not see the “head-butt”
and could not say who initiated the physical contact.
Someone called the police, who arrived about twenty minutes later. Chavarria gave a
statement to the police. Responding Allen police officer Davis Upvall testified as to this statement:
He said during a soccer match he and a subject from another team got into a pushing
match on the way back to their benches after receiving yellow cards. And the
subject from the other team called him some names, when he turned around and
looked at him, he was immediately head-butted.
Upvall noticed that Chavarria was bleeding and had injuries to his teeth: “[h]is two upper middle
front teeth were pushed, I believe . . . they were loose. And then the . . . center tooth was broken
in half.” Upvall spoke to McCoy and the goalie for Chavarria’s team who confirmed Chavarria’s
story. He also spoke to a third person, who told Upvall he was from appellant’s team but whose
identity Upvall did not verify; this unnamed person corroborated Chavarria’s story.
Because appellant had already left the facility, Upvall got appellant’s address from the
facility and went to appellant’s residence to talk to him. Upvall noticed that appellant had two
Band-Aids on his forehead. Upvall testified that, in explaining what happened, appellant said that
his team was “down” and that Chavarria was “playing dirty.” Appellant told the officer that
Chavarria made the first physical contact by punching appellant; the officer believed appellant said
he got back up and pushed Chavarria back. They were both issued yellow cards and proceeded to
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the penalty box. Appellant told the officer that “on the way there . . . [Chavarria] . . . came after
him first, and that he ducked in, it was the term that he used.” When Upvall asked appellant what
“ducking in” was, appellant would not elaborate. Upvall testified that he thought Chavarria’s story
made more sense because it “was corroborated by a person there at the time, and two other
witnesses, one being the score keeper, which I would think, you know, is impartial from the two
parties.”
Appellant was subsequently arrested and charged with assault. The case was tried to a jury
which found appellant guilty. Appellant filed a motion for new trial, which the trial court denied.
This appeal followed.
Appellant’s Allegations and State’s Response
Appellant claims that the trial court erred by prohibiting him from cross-examining
Chavarria, the complaining witness, about his personal injury claim against appellant. The State
responds that appellant failed to preserve this complaint for appellate review because he did not
object to the limitation on his questioning of Chavarria, and, further, did not make an offer of proof
or a bill of exceptions as to the expected content of the excluded testimony. The State further
argues that appellant fails to demonstrate that the trial court abused its discretion by limiting his
cross-examination of Chavarria and, even if it did, any error in the trial court’s ruling is harmless.
Cross-Examination and Other Questioning
During appellant’s cross-examination of Chavarria, the following exchange took place:
Q. (BY DEFENSE COUNSEL) Did you go to the hospital?
A. The following morning I went to the dentist.
Q. Okay. And – well, did your insurance take care of that?
A. Don’t have dental insurance.
Q. Oh, you don’t have insurance?
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A. No, sir.
Q. Okay. Well, who paid for your doctor bill?
A. I’ve been paying for it myself.
Q. Oh, you have?
A. Yes, sir.
*
Q. Okay. And you now – have you made a personal injury claim against –
(BY THE PROSECUTOR): Objection, Your Honor.
May we approach?
THE COURT: Both sides approach.
(At the bench, outside the hearing of the court reporter.)
THE COURT: Sustained.
A record was not made of what was discussed outside the hearing of the court reporter, nor
did appellant object to the trial court’s action in sustaining the State’s objection.
During the course of the State’s re-direct examination of Chavarria, the following exchange
took place:
Q. (BY THE PROSECUTOR) Carlos, you and I have talked a lot about
taking care of all these bills that you’re dealing with, right?
A. Correct.
Q. Has that been difficult for you?
A. Yes, ma’am.
Q. And we at the DA’s office have been trying to kind of figure it all out, is
that right?
A. Yes, ma’am.
Q. How much money are you out on all this?
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A. So far, I’m sure I’ve paid about $3,000, a little more.
Appellant did not seek to question Chavarria further about his dental bills or how he
planned to try and pay them.
Confrontation and Preservation
The State argues that appellant has failed to preserve error because he did not make a
sufficient record showing why he should have been allowed to question Chavarria on any civil
lawsuit he may have filed against appellant. We agree.
The record reflects only that, following an off-the-record discussion, the trial court
sustained the State’s general objection to appellant’s attempted line of questioning “have you made
a personal injury claim against” appellant. The record does not reflect that appellant objected to
the trial court’s limitation on his questioning of Chavarria. Nor does the record reflect that
appellant made a bill of exceptions or offer of proof regarding his attempted line of questioning.
The Sixth Amendment to the United States Constitution guarantees the right of an accused
in a criminal prosecution “to be confronted with the witnesses against him.” U.S. CONST. amend.
VI. This guarantee is applicable to the states by the Due Process Clause of the Fourteenth
Amendment. U.S. CONST. amend. XIV; Pointer v. State, 380 U.S. 400, 403 (1965); see also TEX.
CONST. art. I, § 10. The right of confrontation includes the right of cross-examination. Carroll v.
State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).
A witness may be cross-examined on any relevant matter, including credibility. TEX. R.
EVID. 611(b). The scope of appropriate cross-examination is necessarily broad. Carroll, 916
S.W.2d at 497; see also Smith v. State, 352 S.W.3d 55, 64 (Tex. App.—Fort Worth 2011, no pet.).
A party has the right to pursue all avenues of cross-examination reasonably calculated to expose
bias, motive, or interest for the witness to testify. Carroll, 916 S.W.2d at 497. The fact that a
witness is a party to a related civil action against the defendant is generally admissible as tending
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to show the pecuniary interest and bias of the witness. Cox v. State, 523 S. W.2d 695, 700 (Tex.
Crim. App. 1975). The relevance of such evidence is its impeachment value to show motive to
give false testimony based on a witness’ desire to recover damages or other relief. Nguyen v. State,
506 S.W.3d 69, 86 (Tex. App.—Texarkana 2016, pet. ref’d).
Preservation requirements apply to confrontation complaints. See Reyna v. State, 168
S.W.3d 173, 179–80 (Tex. Crim. App. 2005) (overruling the defendant’s confrontation issues
because he did not preserve error related to the confrontation clause at trial); Deener v. State, 214
S.W.3d 522, 527 (Tex. App.—Dallas 2006, pet. ref’d) (holding that the right of confrontation is a
forfeitable right that must be preserved by a timely and specific objection at trial); TEX. R. APP. P.
33.1. To preserve error on confrontation grounds when cross-examination of a witness was limited,
a defendant must show by a bill of exceptions or an offer of proof what questions he wished to ask
and the responses he expected to receive. See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App.
1999) (stating that “[e]rror in the exclusion of evidence may not be urged unless the proponent
perfected an offer of proof or a bill of exceptions”); Easterling v. State, 710 S.W.2d 569, 578 (Tex.
Crim. App. 1986) (holding that when a defendant contends that his right of cross-examination was
unduly limited, nothing is preserved for review unless the record shows, “by bill of exception(s)
or otherwise,” what questions the defendant wanted to propound to the witness and the answers
expected therefrom).
Appellant did not argue to the trial court that his right to confrontation demanded that he
be allowed to cross-examine Chavarria about whether he had filed a civil lawsuit against appellant.
Appellant did not make a bill of exceptions or offer of proof regarding what testimony he sought
to elicit from Chavarria or what he anticipated Chavarria’s answers to be. We conclude that
appellant failed to preserve this issue for appellate review.
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Any Error is Harmless
Even if appellant had preserved this issue for our review, and even if we were to find an
abuse of discretion in the trial court’s action sustaining the State’s objection to appellant’s
attempted cross-examination of Chavarria, we would not find reversible error.
A harmless error analysis applies when a trial court improperly limits a defendant’s cross-
examination of a witness for the purpose of exposing the witness’s bias. See Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986); Shelby v. State, 819 S.W.2d 544, 546 (Tex. Crim. App. 1991);
see also TEX. R. APP. P. 44.2(a). Under this analysis, we must first assume that the damaging
potential of the cross-examination was fully realized, and then determine whether the error was
harmless beyond a reasonable doubt in light of the following factors: (1) the importance of the
witness’s testimony in the prosecution’s case, (2) whether the testimony was cumulative, (3) the
presence or absence of evidence corroborating or contradicting the testimony of the witness on
material points, (4) the extent of cross-examination otherwise permitted, and (5) the overall
strength of the prosecution’s case. Shelby, 819 S.W.2d at 547.
Chavarria, as the complaining witness, was significant to the prosecution. Appellant was
allowed to extensively cross-examine Chavarria; this was the only limitation placed on appellant’s
cross-examination of Chavarria. Other witnesses corroborated Chavarria’s version of events; the
scorekeeper, McCoy, testified that he saw appellant approach Chavarria, grab him by the shoulders
and “head-butt” him while the referee, McClure, testified that it looked to him like an intentional
“head-butt.” Although appellant presented witnesses who corroborated his testimony that
Chavarria was aggressive and gave him provocation, those witnesses did not testify that appellant’s
“head-butt” had not been the cause of Chavarria’s injuries. And appellant did not dispute that
Chavarria had suffered injuries, even though he claimed that his head came in contact with
Chavarria’s teeth accidentally.
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Although no evidence of a civil suit was admitted at trial, the jury was informed that
Chavarria was seeking reimbursement for his dental costs during defense counsel’s opening
statement:
There is a young man who is going to get on the witness stand and is going to lie,
lie, lie, lie, lie some more because he wants a personal injury settlement for his
broken teeth. We’ve already got a letter from personal injury lawyers. That’s what
this is about.
The State did not challenge this statement, either by objecting at the time it was made or by offering
any evidence to the contrary. Additionally, the State presented evidence that Chavarria had found
it difficult to pay his dental bills, and that he had spent more than $3000 “so far.”
Chavarria’s acknowledgement on cross-examination that a civil suit had been filed would
have been cumulative of other information already before the jury. It would also have done little
to impeach his testimony (which was later impeached by three defense witnesses) that appellant
had assaulted him intentionally and caused his injuries. And it would have afforded little, if any,
benefit to appellant’s defense that his assault on Chavarria was accidental.
We conclude that any error in limiting appellant’s cross-examination of Chavarria
concerning the existence of a civil lawsuit was harmless. We overrule appellant’s issue.
Conclusion
We affirm the trial court’s judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
170735F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FRANCISCO J. TRUJILLO-CAMACHO, On Appeal from the County Court at Law
Appellant No. 4, Collin County, Texas
Trial Court Cause No. 004-84704-2016.
No. 05-17-00735-CR V. Opinion delivered by Justice Lang-Miers.
Justices Bridges and Francis participating.
THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered this 22nd day of October, 2018.
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