Santos Aquileo Cruz-Escalante v. State , 2016 Tex. App. LEXIS 3618 ( 2016 )

Opinion issued April 7, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00118-CR
———————————
SANTOS AQUILEO CRUZ-ESCALANTE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court
Harris County, Texas
Trial Court Case No. 1311655
OPINION
A jury found appellant, Santos Aquileo Cruz-Escalante, guilty of the offense
of aggravated sexual assault of a child,1 and the trial court assessed his punishment
1
See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon Supp. 2015).
at confinement for twenty years. In his sole issue, appellant contends that the trial
court erred in limiting his cross-examination of one of the State’s witnesses, thereby
denying him the right to present a defense.2
We affirm.
Background
The complainant testified that during the summer after her kindergarten year
of school, she, while out riding her bicycle, stopped to help appellant “clean his car.”
When he asked her whether she wanted a soda, she responded “yes.” Appellant then
“took [her] to go upstairs,” “told [her] to take off [her] pants,” “made [her] lay
down,” and then “put his middle part inside of [her] middle part.” The complainant
identified her “middle part” as “the vagina” and appellant’s “middle part” as “the
male sexual organ, the penis.” She explained that appellant was “on top of [her],”
she was “facing up at the ceiling,” and it “hurt.” The complainant then “told
[appellant] that [her] mom was calling [her],” “pulled [her] pants up,” and left.
The complainant explained that when she got home she did not tell her mother
or grandmother about what had happened because she was scared and “didn’t want
to get in trouble.” Later, while she visiting her father in New York, she told her
sister and father “somebody did something bad” to her.
2
See U.S. CONST. amends. VI, XIV.
2
Teresa Santos, a licensed clinical social worker, testified that during the
summer of 2010, she served as “[a] forensic interviewer at the child advocacy center
at [the] Montefiore Medical Center” in New York. On July 12, 2010, she met with
the complainant, who was six years old at the time. The complainant discussed with
Santos events that had occurred earlier that summer in Houston, Texas, “around the
time school ended.” The complainant told her that while “she was outside riding her
bicycle,” a man “offered her a soda.” However, the man “tricked” her and took her
to “his living room” “[i]n his apartment.” The man then “pulled [her] shorts down
and [her] panties down,” “put [her] down” on the ground, and “put his wiener in
[her] butt.” Santos noted that the complainant identified “the male sexual organ” as
his “wiener” and both her “butt” and “bottom” as her anus. The complainant
explained that at “[f]irst it was soft, then it was hard” and “felt bad.” She also told
Santos that the man “touched [her] on [her] bottom.” In order to “get out” of the
man’s apartment, the complainant told him that her mom was calling her, and “he
let [her] go.” The complainant identified the man as “Santos” and explained that
“[h]e lived in the same [apartment] buildings” that she lived in.
The complainant’s father testified that the complainant was six years old when
she visited him in New York in July 2010. He explained that while she was visiting,
“[s]he told [him] about a man named Santos that was a friend of her mother’s . . . that
took her upstairs . . . to give her candy . . . . And he told her that it was not going to
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hurt and he did what he had to do.” When her father asked her what the man did,
the complainant told him that the man “took her from behind, that he turned her
around and took her from behind. And that’s when she felt pain.” More specifically,
the complainant told him that the man “put his private on her” and “his private
touched” “her front and behind” “[p]rivate parts.” To get away, the complainant
“told [the man] that her mother was calling her.” She identified the man by his name,
“Santos,” and said that he was a “neighbor.”
Houston Police Department (“HPD”) Officer K. Estrada, assigned to HPD’s
juvenile division sex crimes unit in 2010, testified that she handled the complainant’s
case. According to Estrada, the complainant, during her forensic interview in New
York, gave appellant’s first name and stated “where he was living.” Later, after the
complainant returned to Houston, she identified appellant in a photographic array
prepared by Estrada. Estrada explained that during her investigation of the case, “it
was discovered that [the complainant] had [genital] warts on her anus.” Although
Estrada was unable to “connect [appellant’s] DNA with [the complainant]” and he
denied “all . . . criminal conduct,” he did admit to knowing the complainant.
Linda Cahill, a pediatrician at the child advocacy center at Montefiore
Medical Center in New York, testified that while examining the complainant, she
saw “lesions on [her] anus consistent with ano-genital warts”—a “common”
sexually-transmitted disease, which can be transmitted either through the birth canal
4
during birth or “through direct sexual contact” with another person. Because the
complainant did not “manifest[] . . . warts” until six years of age, Cahill opined that
she “acquired” the sexually-transmitted disease “after birth” “through direct sexual
contact” with another person. Cahill also opined that the complainant is a victim of
sexual abuse.
The complainant’s mother testified that she did not have any “warts” or
“sexually transmitted diseases at the time [she] gave birth to [the complainant].”
And she explained that the complainant did not have any sexually-transmitted
diseases or “warts” “before the summer of 2010.”
Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);
Tarley v. State, 420 S.W.3d 204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet.
ref’d). Likewise, we review a trial court’s decision to limit cross-examination under
an abuse-of-discretion standard. Mims v. State, 434 S.W.3d 265, 271 (Tex. App.—
Houston [1st Dist.] 2014, no pet.); Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d). A trial court abuses its discretion if its
decision is “so clearly wrong as to lie outside the zone within which reasonable
people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.
2008); see also Tarley, 420 S.W.3d at 206.
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Cross-Examination
In his sole issue, appellant argues that the trial court erred in limiting his cross-
examination of the complainant’s father, a State’s witness, regarding “a custody
battle between the complainant’s parents” because it deprived him of his right to
present a defense.3
The United States Constitution guarantees a defendant a meaningful
opportunity to present a complete defense and the right to cross-examine witnesses.
U.S. CONST. amends. VI, XIV; see also Crane v. Kentucky, 476 U.S. 683, 690, 106
S. Ct. 2142, 2146 (1986); Delaware v. Van Arsdall, 475 U.S. 673, 678–79, 106 S.
Ct. 1431, 1435 (1986); Carroll v. State, 916 S.W.2d 494, 496–98 (Tex. Crim. App.
3
We note that the State, in its brief, asserts that appellant has not preserved this
complaint for appellate review. On appeal, “there is a distinction between [a]
situation where [a] defendant desires to elicit certain, specific responses from a
State’s witness but is precluded from doing so” and a situation “where [a] defendant
is not permitted to question a State’s witness about a certain general subject that
might affect the witness’s credibility.” Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim.
App. 1987). To preserve error when the trial court excludes certain, specific
responses, “it is incumbent upon the defendant to either” have the witness answer
the questions on the record or “make an offer of proof of the questions he would
have asked and the answers he might have received had he been permitted to
question the witness in the presence of the jury.” Koehler v. State, 679 S.W.2d 6, 9
(Tex. Crim. App. 1984). In contrast, when a trial court deprives a defendant of the
opportunity to cross-examine a witness on a subject affecting the credibility of the
witness, the defendant “must merely establish what subject matter he desired to
examine the witness about during the cross-examination.” Id. Here, due to our
disposition of appellant’s sole point of error, we need not address whether appellant
has preserved his complaint for our review. See TEX. R. APP. P. 47.1; see also
Montgomery v. State, 383 S.W.3d 722, 728–29 (Tex. App.—Houston [14th Dist.]
2012, no pet.) (declining to address whether defendant preserved complaint
regarding trial court’s alleged improper limitation of cross-examination of witness).
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1996). However, although a defendant’s right to confrontation and cross-
examination is constitutionally safeguarded, it is not absolute. See Van Arsdall, 475
U.S. at 678–79, 106 S. Ct. at 1435; Chambers v. Mississippi, 410 U.S. 284, 295, 93
S. Ct. 1038, 1046 (1973).
A defendant may cross-examine a witness on any subject reasonably
calculated to attack his credibility, such as exposing a motive, bias, or interest. See
TEX. R. EVID. 611(b); see also Carroll, 916 S.W.2d at 497–98; Carpenter v. State,
979 S.W.2d 633, 634 (Tex. Crim. App. 1998) (exposing witness’s motivation to
testify for or against defendant proper and important purpose of cross-examination).
However, a trial court is afforded “considerable discretion in determining how and
when bias may be proved, and what collateral evidence is material for that purpose.”
Recer v. State, 821 S.W.2d 715, 717 (Tex. App.—Houston [14th Dist.] 1991, no
pet.); see also Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1987) (“The trial
judge retains wide latitude to impose reasonable limits on cross-examination . . . .”).
For instance, a trial court has the discretion to limit the scope of cross examination
“to avoid . . . 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); see also 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
7
on concerns about, among other things, harassment, prejudice, confusion of the
issues, the witness’ safety, or interrogation that is repetitive or only marginally
relevant.”).
In his brief, appellant appears to argue that the trial court’s error in limiting
his cross-examination of the complainant’s father was constitutional error because
evidence regarding the “custody battle” between the complainant’s parents could
have shown “motive for [the complainant’s father’s] testimony and the allegations
[made] against [a]ppellant.” For purposes of our analysis, we will assume that
appellant is correct that the alleged error in this case is constitutional error. See TEX.
R. APP. P. 44.2(a); see also Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App.
2012) (“[C]onstitutional error is subject to a much stricter harm analysis on
appeal.”); Dees v. State, Nos. 02-12-00488-CR, 02-12-00489-CR, 2013 WL
6869865, at *6 n.6 (Tex. App.—Fort Worth Dec. 27, 2013, pet. ref’d) (mem. op.,
not designated for publication) (because appellate court determined defendant not
harmed under constitutional-error analysis, no need to “conduct a less intensive
nonconstitutional harm analysis for the trial court’s [alleged] error in excluding the
complained-of evidence”).
The United States Supreme Court and the Texas Court of Criminal Appeals
have held that a harmless-error analysis applies when a trial court improperly limits
a defendant’s cross-examination of a witness in violation of the Confrontation
8
Clause. See Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438; Shelby v. State, 819
S.W.2d 544, 546–47 (Tex. Crim. App. 1991); see also TEX. R. APP. P. 44.2(a).
Under this analysis, an appellate court 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. Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438; Shelby, 819 S.W.2d at 547.
Here, appellant specifically complains about the following exchange, which
occurred during his cross-examination of the complainant’s father:
[Appellant’s attorney]: May we approach, Your Honor?
THE COURT: Yes.
(At the bench, on the record.)
[Appellant’s attorney]: 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?
[Appellant’s attorney]: After his knowledge of this.
THE COURT: Okay. After all this, okay.
9
[Appellant’s attorney]: 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 --
[State’s attorney]: Can you whisper?
[Appellant’s attorney]: 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.
[Appellant’s attorney]: No, he just --
(inaudible).
THE COURT REPORTER: I can’t hear you . . . .
THE COURT: I don’t think he wants it on the record.
[Appellant’s attorney]: Okay. So there was a custody hearing.
[State’s attorney]: Can you whisper?
[Appellant’s attorney]: 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 --
THE COURT: That’s not coming in here.
[Appellant’s attorney]: Okay. That’s why I approached.
10
THE COURT: Okay. And my understanding is she’s
on the witness list also, right?
[Appellant’s attorney]: Yeah.
THE COURT: No, that’s not coming in at this point.
[Appellant’s attorney]: Okay. All right. Thank you, Your
Honor.
(End of discussion at the bench.)
We need not address whether the trial court erred in limiting appellant’s cross-
examination of the complainant’s father about the “custody battle” between the
complainant’s parents because, even were we to conclude that the trial court erred,
appellant has failed to establish harm. See TEX. R. APP. P. 47.1; see also Collazo v.
State, No. 04-12-00004-CR, 2013 WL 3279268, at *3–4 (Tex. App.—San Antonio
June 26, 2013, no pet.) (mem. op., not designated for publication) (declining “to
address whether the trial court erred in limiting the cross-examination . . . because
[the appellate court] h[e]ld that any such error would be harmless beyond a
reasonable doubt”); Mole v. State, No. 2-08-021-CR, 2009 WL 1099433, at *10–11
(Tex. App.—Fort Worth Apr. 23, 2009, pet. ref’d) (mem. op., not designated for
publication) (“[A]ssuming without deciding that the trial court abused its discretion
by prohibiting cross-examination of [the witness] regarding the internal
investigation against him, we will perform the required harm analysis.”).
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In conducting our harm analysis, we focus on the testimony of the
complainant’s father and assume that the damaging potential of the cross-
examination was fully realized. See Shelby, 819 S.W.2d at 547, 550. In other words,
we assume that the jury was fully informed of the “custody battle between the
complainant’s parents” and that it constituted “motiv[ation] for [the complainant’s
father’s] testimony and the allegations [made] against [a]ppellant”; we then apply
the factors delineated in Van Arsdall and Shelby. See Van Arsdall, 475 U.S. at 684,
106 S. Ct. at 1438; Shelby, 819 S.W.2d at 547, 550–51.
The complainant’s father testified that the complainant, while visiting him in
New York, told him “about a man named Santos,” a friend of her mother and a
neighbor, who “took her upstairs” and “put his private on her.” The complainant
also told her father that the man’s “private touched” “her front and behind” “[p]rivate
parts.”
In regard to the importance of the testimony of the complainant’s father to the
State’s case and the cumulativeness of the testimony, we note that the same events
that were described by the complainant’s father were also discussed, in significantly
more detail, by the complainant herself and Santos, the licensed clinical social
worker who interviewed the complainant after she reported the sexual assault.
Further, at trial, the complainant identified appellant as the man who had
sexually assaulted her, and both Santos and Officer Estrada, the lead investigator
12
handling the case, also testified that the complainant had identified appellant as the
man who had sexually assaulted her. The testimony of the complainant’s father
merely reiterated what the complainant, Santos, and Estrada testified to at trial. In
other words, the testimony of the complainant’s father was cumulative and not vital
to the State’s case. See, e.g., Brown v. State, Nos. 14-12-00833-CR, 14-12-00834-
CR, 2014 WL 5308790, at *7 (Tex. App.—Houston [14th Dist.] Oct. 16, 2014, pet.
ref’d) (mem. op., not designated for publication) (testimony “not essential because
it was largely cumulative” of other witnesses’ testimony); Ramos v. State, No. 01-
12-00957-CR, 2014 WL 50812, at *11 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014,
no pet.) (mem. op., not designated for publication) (witness’s testimony “largely the
same as that of the complaining witness”); Montgomery v. State, 383 S.W.3d 722,
728–29 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (error harmless beyond
reasonable doubt where “testimony was not very important to the State’s case” and
“was cumulative of other evidence before the jury”).
In regard to the presence or absence of evidence corroborating or
contradicting the testimony of the complainant’s father on material points, the
complainant’s testimony corroborated much of her father’s testimony as did the
testimony of Santos and Officer Estrada; and the only evidence that contradicted the
testimony of the complainant’s father was Estrada’s testimony that appellant denied
“all . . . criminal conduct.” See, e.g., Bradshaw v. State, No. 04-11-00173-CR, 2012
13
WL 1648218, at *4 (Tex. App.—San Antonio May 9, 2012, pet. ref’d) (mem. op.,
not designated for publication) (“[A]ny error the trial court may have made in
limiting cross-examination” of witness harmless where other witness’s testimony
provided corroboration). And, although appellant was not permitted to fully cross-
examine the complainant’s father about the “custody battle between the
complainant’s parents,” he was otherwise permitted to cross-examine the
complainant’s father, and he did elicit the following:
[Appellant’s attorney]: . . . Now, while you were living in
New York, was there a -- were you
fighting for custody for [the
complainant]?
[The complainant’s father]: No, that was afterwards.
[Appellant’s attorney]: Okay. After what?
[The complainant’s father]: After what happened here.
Further, appellant was permitted to ask the complainant’s mother questions about
the “custody battle” during his cross-examination of her. See, e.g., Dees, 2013 WL
6869865, at *7–9 (defendant “had ample opportunity to cross-examine the [witness]
and present his defensive theory to the jury”); Smith v. State, 236 S.W.3d 282, 294–
95 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (any error harmless where
defendant “was otherwise permitted to fully cross-examine” witness).
Finally, we note that the State’s case against appellant was strong, even
without the testimony of the complainant’s father. The complainant testified that
14
while she was out riding her bicycle, she stopped to help appellant “clean his car.”
He then asked her whether she wanted a soda. When she said that she did, appellant
“took [her] to go upstairs,” where he “told [her] to take off [her] pants,” “made [her]
lay down,” and then “put his middle part inside of [her] middle part.” Appellant was
“on top of [the complainant],” she was “facing up at the ceiling,” and it “hurt.”
Santos testified that the complainant told her that while “she was outside
riding her bicycle,” a man named “Santos,” who “lived in the same [apartment]
buildings” that she lived in, “offered her a soda.” However, he “tricked” her and
took her to “his apartment,” where he “pulled [her] shorts down and [her] panties
down,” “put [her] down” on the ground, and “put his wiener in [her] butt.”
Further, Officer Estrada testified that after the complainant returned to
Houston, she, from a photographic array prepared by Estrada, identified appellant as
the man who had sexually assaulted her. And Cahill, the pediatrician who examined
the complainant after the sexual assault was reported, testified that the complainant
had “lesions on [her] anus consistent with ano-genital warts”—a “common”
sexually-transmitted disease. And because the complainant did not
“manifest[] . . . warts” until six years of age, Cahill opined that she “acquired” the
sexually-transmitted disease “after birth” “through direct sexual contact” with
another person. Cf. Brown, 2014 WL 5308790, at *7 (“Even excluding [witness’s]
testimony,” “jury heard compelling testimony of the altercation” from other
15
witnesses “who[] testified consistently on the material points.”); Ramos, 2014 WL
50812, at *11 (“The State’s case was strong” where “there was . . . testimony from
the complaining witness.”).
Based on the foregoing factors, focusing on the testimony of the
complainant’s father, and assuming the jury had been fully informed about the
“custody battle between the complainant’s parents” and that it constituted
“motiv[ation] for [the complainant’s father] testimony and the allegations [made]
against [a]ppellant,” we hold that any error of the trial court in not allowing
appellant to fully cross-examine the complainant’s father about the “custody battle”
was harmless beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 684, 106 S.
Ct. at 1438; Shelby, 819 S.W.2d at 550–51.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Keyes, and Bland.
Publish. TEX. R. APP. P. 47.2(b).
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