Eduardo Palomo Medina v. the State of Texas ( 2024 )

Affirmed and Opinion Filed April 22, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00228-CR
EDUARDO PALOMO MEDINA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-82184-2022
MEMORANDUM OPINION
Before Justices Garcia, Breedlove, and Kennedy
Opinion by Justice Breedlove
A jury found appellant Eduardo Palomo Medina guilty of continuous sexual
abuse of a child. TEX. PENAL CODE ANN. § 21.02(b). The trial court sentenced
appellant to 30 years’ imprisonment. In three issues, appellant contends the trial
court erred in the admission and the exclusion of certain evidence. Concluding that
the trial court did not err, we affirm appellant’s conviction.
BACKGROUND
Appellant and M.R.’s mother lived together and were in a relationship when
M.R. was twelve years old, and M.R. considered appellant to be her stepfather. When
appellant first met M.R., he treated her nicely and would take her to the park or the
mall. But around the time Mother had gallbladder surgery and was unable to be
intimate, appellant began to touch M.R. He started out by touching her bottom when
he carried her over his shoulder, and then began to abuse her at home on the couches
when Mother was at work. M.R. testified that he would force her to kiss him by
pulling her hair. He would get on top of M.R. and force her to touch his penis under
his underwear. She testified that it felt wet, cold, weird, and soft.1 She testified that
appellant would pull her clothes down to her knees and put his finger inside her
vagina, and it hurt. She also testified that appellant would ask her whether she
wanted “Round 2,” “like if I wanted—wanted to do it again, you know,” and she
would refuse.
Appellant also showed M.R. inappropriate pictures on his phone that depicted
some of M.R.’s favorite Disney or TV characters in suggestive or sexualized poses.
M.R. explained that other pictures appellant showed her depicted “people having
sexual stuff.” She testified that the pictures made her uncomfortable. She also
testified that appellant had undressed in front of her and looked at her while he took
off his clothes, and it made her “[u]ncomfortable and afraid that he would do
something.”
M.R. told a friend at school about the abuse, who encouraged her to tell the
principal. M.R. told the school staff enough for them to contact law enforcement,
1
M.R.’s mother later testified that appellant has erectile dysfunction. In her forensic interview, M.R.
also used the word “gooey” in her description.
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and M.R. was forensically interviewed the same day. Both during her report to the
school staff and her forensic interview, M.R. cried and was distraught. M.R. gave
general and sensory details about the abuse.
Appellant was indicted for continuous sexual abuse of a child under 14, see
TEX. PENAL CODE ANN. § 21.02(b), and the case proceeded to a jury trial. The jury
heard testimony from M.R., M.R.’s school principal, a responding police officer, an
interviewer from the Children’s Advocacy Center, M.R.’s mother, and the police
detective who investigated the case. The jury found appellant guilty, and the trial
court sentenced appellant to 30 years’ imprisonment. This appeal followed.
DISCUSSION
In three issues, appellant argues the trial court erred by (1) admitting State’s
Exhibits 9–12, (2) sustaining the State’s relevance objection to the defense’s
questioning of M.R., and (3) excluding evidence of M.R.’s prior “outcry.”
1. Admission of State’s Exhibits 9-12
In his first issue, appellant contends the trial court erred by admitting images
obtained from a “dump” of his cell phone. He argues the exhibits should have been
excluded under rule 403 of the Texas Rules of Evidence. Under rule 403, the court
may exclude otherwise relevant evidence when its probative value is substantially
outweighed by the danger of unfair prejudice, confusing the issues, misleading the
jury, undue delay, or “needlessly presenting cumulative evidence.” TEX. R. EVID.
403.
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We review the trial court’s decision to admit or exclude evidence for abuse of
discretion. Inthalangsy v. State, 634 S.W.3d 749, 754 (Tex. Crim. App. 2021). “[A]n
appellate court will uphold a trial court’s ruling on admissibility so long as it is
within the ‘zone of reasonable disagreement.’” Id. (quoting Powell v. State, 63
S.W.3d 435, 438 (Tex. Crim. App. 2001)). This is so because trial courts are usually
in the best position to make the determination as to whether certain evidence should
be admitted or excluded. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim.
App. 2007).
This Court will reverse a trial court’s determination under rule 403 “rarely and
only after a clear abuse of discretion.” Perkins v. State, 664 S.W.3d 209, 217 (Tex.
Crim. App. 2022). We measure the trial court’s ruling “against the relevant criteria
by which a Rule 403 decision is made.” Id. When a trial court considers the
admissibility of evidence under rule 403, it conducts a balancing test:
In summary, a trial court, when undertaking a Rule 403 analysis, must
balance (1) the inherent probative force of the proffered item of
evidence along with (2) the proponent’s need for that evidence against
(3) any tendency of the evidence to suggest decision on an improper
basis, (4) any tendency of the evidence to confuse or distract the jury
from the main issues, (5) any tendency of the evidence to be given
undue weight by a jury that has not been equipped to evaluate the
probative force of the evidence, and (6) the likelihood that presentation
of the evidence will consume an inordinate amount of time or merely
repeat evidence already admitted. Of course, these factors may well
blend together in practice.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006) (footnote
omitted).
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Appellant argues that all of the Gigliobianco factors weigh against admission
of the exhibits. He contends that he was not charged with any criminal offenses
involving child pornography. He argues that the exhibits have no bearing on the
State’s burden of proving the essential elements of the charged offense of continuous
sexual abuse of a child, and accordingly are irrelevant. He also contends the exhibits’
admission unfairly placed a burden on him to defend against extraneous matters, and
posed a danger for the jury to decide the case on those extraneous matters. He argues
that with the admission of the exhibits, the State could “argue a highly prejudicial
claim that the defendant was sexualizing or grooming the child that is not supported
by any other evidence.” He contends the exhibits were inflammatory, “needlessly
cumulative,” and did not aid the jury in resolving the ultimate issue. He concludes
that the exhibits’ probative value was “significantly outweighed” by prejudice, and
the admission was “harmful and had a negative influence on the jury’s verdict,” so
that the trial court abused its discretion by failing to exclude the exhibits under rule
403.
The State responds that the trial court did not abuse its discretion in admitting
the exhibits, arguing that the exhibits were “highly probative in that they
corroborated M.R.’s testimony and were evidence that Appellant groomed her.” The
State also argues that “[i]t is unlikely the admission of the exhibits impressed the
jury in some irrational way,” the trial court’s limiting instruction minimized any
impermissible inference, and the time it took to develop the evidence was minimal.
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In the alternative, the State argues that even if the trial court erred, the error did not
affect appellant’s substantial rights.
The State introduced evidence that M.R. told the forensic interviewer that
appellant showed her animated images on his cell phone. The images were
characters from some of her favorite shows, but the drawings displayed sexual acts.
At trial, M.R. testified that appellant showed her photos of “some Disney characters,
some of my favorite characters,” and “there were two people having sexual stuff.”
She testified that the photos were on appellant’s phone. M.R. identified Exhibits 9
through 12, testifying that she recognized them as photos appellant showed her. She
testified that the photos were animated, and that one of them showed a character
from “Demon Slayer,” one of her favorite shows.
The investigating police detective testified that the exhibits “depict images or
cartoon images of females with—exposing—some of them exposing their breasts
and showing them just in a very risqué sexual manner.” The detective testified that
M.R.’s description of the images corroborated M.R.’s statement:
Q. Did the fact that those images were found on his phone mean
anything to you during the course of your investigation?
A. Yes, it did.
Q. And what—what was that?
A. Evidence based on what the child described, that [appellant] had
shown her and that she saw via reflection in their apartment
complex window that he was accessing on his cell phone; and
she mentioned some of these images were saved or—or were
shown.
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Q. Was she pretty specific, like was it specific that it was animated
images?
A. Yes. It might—and she called them, if I’m not mistaken, cartoon-
like characters, drawings that depicted—what she was calling the
private parts [is how] she described it, I think after—after the
forensic interviewer clarified it as the male sexual organ, the
female sexual organ, and the breasts, as well.
Q. So the fact that these images were located on his phone, was that
important corroboration in your mind as the detective working
on the case?
A. Absolutely.
Q. And why is that?
A. Well, in my opinion it gave credit to the child’s testimony or
statement.
The forensic interviewer testified similarly, that in her experience, “that kind of
behavior” is “consistent with grooming,” which she defined as “a way that a
perpetrator breaks down barriers to gain access to offend on a child, or on anybody.”
We conclude, as the trial court did, that the evidence was highly probative.
The evidence was not only that appellant had the images on his phone, but also that
the images depicted M.R.’s favorite characters and that appellant showed the images
to M.R. Testimony about the images did not “consume an inordinate amount of time
or merely repeat evidence already admitted.” Gigliobianco, 210 S.W.3d at 641–42.
M.R.’s testimony identifying the exhibits and explaining that appellant showed them
to her took approximately five pages of a two-volume trial record, and the additional
testimony by the forensic interviewer and police detective quoted above was
similarly brief.
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In the charge, the trial court instructed the jury that they could not consider
testimony about other offenses for any purpose unless they found and believed
beyond a reasonable doubt that the defendant committed the other offenses, if any,
and even then could only consider them in determining motive, opportunity, intent,
preparation, plan, absence of mistake, or lack of accident in connection with the
offense alleged in the indictment. The jury is presumed to have understood and
followed the court’s charge. Crenshaw v. State, 378 S.W.3d 460, 467 (Tex. Crim.
App. 2012).
Having weighed the Gigliobianco factors, 210 S.W.3d at 641–42, we
conclude that the probative value of Exhibits 9–12 was not “substantially
outweighed” by a danger of “unfair prejudice, confusing the issues, misleading the
jury, undue delay, or presenting cumulative evidence.” TEX. R. EVID. 403. We
overrule appellant’s first issue.
2. Cross-examination of complainant
Appellant next complains that the trial court erred by sustaining the State’s
relevance objection to the defense’s questioning of M.R. about a prior incident
involving her uncle. A trial court’s ruling to admit or exclude evidence is reviewed
on appeal for abuse of discretion. Inthalangsy, 634 S.W.3d at 754. An abuse of
discretion occurs if the trial court’s decision lies outside the zone of reasonable
disagreement. Id. The test for relevance is whether the evidence “has any tendency
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to make a fact more or less probable than it would be without the evidence,” and
“the fact is of consequence in determining the action.” TEX. R. EVID. 401.
Outside the jury’s presence, appellant’s counsel elicited testimony from M.R.,
appellant’s sister, and M.R.’s mother about the incident. Previously on cross-
examination before the jury, M.R. had testified she knew that her cousin had been
sexually abused by M.R.’s uncle. She then testified that she thought “my uncle tried
to, like, touch me.” In further questioning out of the jury’s presence, M.R. testified
that when she and her sisters were watching TV, her uncle “got up, like, with them,
and then he was just on top of me, basically kind of like tickling me” on her stomach.
She explained that it only happened once, when she was about five, a “long time”
before the incidents with appellant. She testified that “it wasn’t, like, exactly the
same thing” as with appellant, and that her uncle “never touched [her] private parts,”
never “ha[d] her touch his private parts,” and did not kiss her “or anything like that.”
The court sustained the State’s relevance objection to M.R.’s testifying on the
subject.
The defense then offered the testimony of appellant’s sister, again out of the
jury’s presence. She testified that at a family party, there was a conversation about
one family member, a young girl, being raped by another family member. According
to the sister, “[M.R.] overheard the conversation and she said, oh, yes, he touched
me, too.” Appellant’s sister testified that M.R.’s mother told M.R., “No, don’t say
that. That’s not true. He didn’t do that.” But M.R. said “Yes, he did.” Defense
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counsel argued that the testimony affected the credibility of M.R. and her mother,
both of whom had already testified before the jury.
The court excluded the evidence after hearing additional testimony from M.R.
and her mother. M.R.’s mother testified she did not have such a conversation with
appellant’s sister, and that M.R. had said only that the uncle asked her to sit next to
him. M.R. testified that the conversation with her mother occurred “in private,” not
at a party, and clarified that when she said her uncle “touched” her, she was “talking
about tickling,” “[n]ot on my private parts.” The State argued that there were no
prior inconsistent statements by M.R. that were at issue, and that the admission of
the evidence would be confusing and misleading for the jury, “especially [because]
we have established now from both Mom and [M.R.] that there has not been an
allegation of sexual abuse” against the uncle.
Appellant argues that the line of questioning of M.R. “is relevant as to her
outcry.” He contends that M.R.’s credibility was an important factor in the jury’s
determination of the issues, and the trial court “should have given more latitude to
the defense to develop bias, motive, ill will, or animus with regard to M.R.’s
allegation” against him. He argues that M.R.’s inability to remember and recount
outcries against both the uncle and appellant “was certainly an important factor for
the jury in judging [M.R.]’s credibility and trustworthiness.” He concludes that the
defense was harmed by the trial court’s erroneous ruling. The State responds that the
trial court did not abuse its discretion in sustaining the objection because the
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testimony did not make a fact of consequence more or less probable, did not
constitute sexual abuse, and was not proven to be false. See TEX. R. EVID. 401.
We conclude the trial court did not abuse its discretion by sustaining the
State’s objection to the admission of the testimony. See Inthalangsy, 634 S.W.3d at
754 (abuse of discretion occurs when the trial court’s decision lies outside the zone
of reasonable disagreement). The proffered evidence did not have any tendency to
make any fact of consequence more or less probable, TEX. R. EVID. 401, given that
none of the testimony concerned sexual abuse or M.R.’s ability to recall incidences
of sexual abuse. We overrule appellant’s second issue.
3. Presentation of a complete defense
In his third issue, appellant complains further about the trial court’s exclusion
of testimony regarding the alleged incident with the uncle. He contends the trial court
impeded his right to present a complete defense under “the Due Process Clause of
the Fourteenth Amendment and the Compulsory and Confrontation Clauses of the
Sixth Amendment.” See Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App.
2009) (citing Crane v. Kentucky, 476 U.S. 683, 690 (1986)).
As we have discussed, after the State rested, appellant again sought the
admission of evidence about prior abuse of M.R., offering testimony of appellant’s
sister, M.R., and M.R.’s mother. After appellant completed the proffer, the trial court
ruled the testimony was not admissible. Appellant now argues that his “primary
defense was based on exposing the credibility of [M.R.]’s outcry and allegations
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against him through a prior false outcry that she made against an uncle.” He argues
that a complaining witness’s motive or animus “is never an irrelevant inquiry and a
defendant may show it through other witnesses,” citing Coleman v. State, 545
S.W.2d 831, 833 (Tex. Crim. App. 1977).2 He contends the evidence clearly showed
a prior outcry by M.R. that M.R.’s mother did not believe, and accordingly, “the
defense should have been able to present to the jury that [M.R.] has made a false
outcry of abuse.” He concludes that “[w]ithout this line of questioning, the defense
was inhibited in presenting [its] theory that [M.R.] is prone to making false
allegations,” because the evidence was “important for the jury in assessing the
validity and veracity of [M.R.]’s current outcry of abuse” against appellant. He
argues that the error was harmful because the ruling denied him “the fundamental
constitutional right to present a complete defense.”
The Sixth Amendment right to confront witnesses includes the right to cross-
examine them to attack their general credibility and to show their possible bias, self-
interest, or motives in testifying. Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim.
App. 2009) (citing Davis v. Alaska, 415 U.S. 308, 316 (1974)). However, the right
is not unqualified, and the trial court has wide discretion in limiting the scope and
extent of cross-examination. Id. Ordinarily, evidentiary rules limiting the
admissibility of evidence do not conflict with the Sixth Amendment. Id.2
We note that Coleman was decided prior to the promulgation of the Texas Rules of Evidence in 1985.
See Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009).
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Generally, a witness may be cross-examined “on any relevant matter,
including credibility.” TEX. R. EVID. 611(b). However, rule of evidence 608(b) bars
cross-examination about specific instances of conduct, other than criminal
convictions as provided in rule 609(a), for the purpose of attacking the witness’s
character for truthfulness. TEX. R. EVID. 608(b), 609(a). “Texas, unlike some
jurisdictions, has not created a per se exception to Rule 608(b)’s general prohibition
against impeachment with specific instances of conduct to admit evidence of the
complainant’s prior false allegations of abuse or molestation.” Hammer, 296 S.W.3d
at 564.
When applying the Sixth Amendment, courts have distinguished attacks on a
witness’s general credibility from attacks that reveal the witness’s possible biases,
prejudices, or ulterior motives that relate directly to the issues or people in the
particular case. Colter v. State, No. 05-18-00016-CR, 2018 WL 6259040, at *4 (Tex.
App.—Dallas Nov. 30, 2018, no pet.) (mem. op., not designated for publication)
(citing Hammer, 296 S.W.3d at 562–63, and Terry v. State, No. 05-12-00279-CR,
2013 WL 1838646, at *4 (Tex. App.—Dallas Mar. 26, 2013, pet. ref’d) (mem. op.,
not designated for publication)). The defendant does not have an absolute right to
impeach a witness’s general credibility, but the Sixth Amendment is offended if an
evidentiary rule bars a defendant from cross-examining a witness about possible
biases, prejudices, and motives to such an extent that he could not present a vital
defensive theory. Hammer, 296 S.W.3d at 562–63; Terry, 2013 WL 1838646, at *4.
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The State contends the trial court did not abuse its discretion. The State argues
that the testimony was hearsay and was not admissible under the exception for
statements of certain abuse victims. See Bays v. State, 396 S.W.3d 580, 585 (Tex.
Crim. App. 2013) (“The outcry statute [TEX. CODE CRIM. PROC. ANN. art. 38.072]
creates a hearsay exception for a child-complainant’s out-of-court ‘statements’ that
‘describe the alleged offense,’ so long as those statements were made ‘to the first
[adult] person . . . to whom the child. . . made a statement about the offense.”). As
the State argues, there is no evidence that M.R. made an “outcry” against her uncle
because there was no “alleged offense.” Instead, M.R. testified:
Q. So everything that you talked about in this court yesterday when
you were in here and you were talking about your uncle and the
tickling, is that everything that happened with your uncle?
A. Yes, ma’am.
Q. So when you were talking about that he touched you, and when
we’re using the word “touch,” are we talking about tickling?
A. Yes, ma’am.
Q. Are we talking about on your private parts or are we talking about
not on your private parts?
A. Not on my private parts.
Neither M.R.’s mother nor appellant’s sister offered any testimony to the contrary
on this point.
We conclude the trial court did not abuse its discretion by excluding the
proffered evidence. Appellant argues that his primary defense was based on
exposing the credibility of [M.R.]’s outcry and allegations against him,” by evidence
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of “a prior false outcry that she made against [the] uncle.” But rule of evidence
608(b) prohibits the admission of evidence offered “to prove specific instances of
the witness’s conduct in order to attack . . . the witness’s character for truthfulness.”
TEX. R. EVID. 608(b). As we explained in Colter, “Hammer makes clear that the
Confrontation Clause does not compel the admission of prior false accusations
offered simply to attack a complainant’s general credibility.” Colter, 2018 WL
6259040, at *5. Nor did the evidence support any defensive theory that M.R. was
biased against appellant or had any motive to accuse him, unlike the complainant in
Hammer. See Hammer, 296 S.W.3d at 567.3
Here, appellant was able to attack M.R.’s credibility and by doing so,
presented the substance of his defense. His counsel cross-examined M.R. about the
timing and details of the abuse. His counsel argued in closing that M.R. was a “very
suggestible 13-year-old child” who “talk[ed] about a lot of different things that
happened,” but was “very suggestible in when that happened, how it happened,
under what circumstances did it happen.” Counsel also argued that M.R. described
the abuse by using the term “sexually abusing me,” “a very adult way to describe
what was happening.” And counsel discussed how no one noticed any change in
3
In Hammer, the court held it was error to exclude evidence that the alleged victim, on a prior occasion,
falsely accused others of rape to conceal she had a consensual sexual relationship with her boyfriend, a boy
of whom her father did not approve. The court concluded that under these circumstances, her past sexual
history was logically connected to her motive to falsely accuse her father of sexual molestation. See
Hammer, 296 S.W.3d at 567–69.
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M.R.’s behavior when the alleged abuse would have been happening. The jury could
consider all of these matters in reaching its verdict.
We conclude the trial court’s ruling excluding the evidence did not fall outside
the zone of reasonable disagreement. See Inthalangsy, 634 S.W.3d at 754. We
overrule appellant’s third issue.
CONCLUSION
The trial court’s judgment is affirmed.
/Maricela Breedlove/
230228f.u05 MARICELA BREEDLOVE
Do Not Publish JUSTICE
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
EDUARDO PALOMO MEDINA, On Appeal from the 401st Judicial
Appellant District Court, Collin County, Texas
Trial Court Cause No. 401-82184-
No. 05-23-00228-CR V. 2022.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Breedlove. Justices Garcia and
Kennedy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 22nd day of April, 2024.
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