Sergio Chavarria v. the State of Texas ( 2024 )

Opinion issued July 25, 2024
In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-23-00302-CR & 01-23-00303-CR
———————————
SERGIO CHAVARRIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Case Nos. 20-DCR-093435 & 20-DCR-093436
MEMORANDUM OPINION
A jury convicted appellant Sergio Chavarria of two counts of felony
indecency with a child by contact.1 The trial court assessed his punishment at
1
See TEX. PENAL CODE § 21.11(a)(1).
confinement of life for each count.2 In his sole appellate issue raised in each
appeal, Chavarria argues that the trial court “erred by ruling that testimony about
[his] sex offender status was admissible, thus denying [him] the constitutional right
to a meaningful opportunity to present a defense.” Because we conclude that the
trial court did not commit reversible error on these evidentiary matters, we affirm.
Background
The complainant, Elizabeth Jones,3 who was 16 years old at the time of trial,
testified that in October 2020 she went with her mother to have her hair cut at
Express Cuts where Chavarria worked. Elizabeth was 13 years old at the time. She
stated that Chavarria took her to the sink area while her mom waited up front.
Chavarria began touching her inappropriately. She stated that he pulled her shirt
down and put his mouth on her breasts, that he squeezed her thighs, and that he
kissed her on her mouth. Elizabeth was unsure how to respond at the time,
testifying that she “was scared . . . of what was going on” and did not know what to
do. Chavarria eventually moved her to a chair where she got her hair cut. Once she
left the Express Cuts, Elizabeth told her mother what had just occurred.
2
Chavarria’s sentence for these felony indecent exposure cases were enhanced by a
prior conviction for sexual assault. See TEX. PENAL CODE § 12.42(c)(2).
3
This name is a pseudonym to protect the identity of the complainant.
2
Elizabeth also told her mother that something similar had occurred on a prior
occasion in February or March 2020, when Chavarria had exposed her breasts and
put his mouth on them. Elizabeth testified that she did not report the initial incident
to her mother because she was scared, she worried it was her fault in some way,
and she just wanted to forget that it ever happened. Elizabeth’s mother, Laura,4
informed police and cooperated in the ensuing investigation, including by taking
Elizabeth for an exam and a forensic interview.
Chavarria was charged with indecent exposure by contact for both the
February 2020 and the October 2020 incidents.5 Elizabeth testified regarding
Chavarria’s conduct toward her, as set out above. Prior to the State calling Laura to
the stand, Chavarria’s counsel referenced a previous discussion during a pre-trial
hearing on a motion in limine and asked that the trial court allow him to question
Laura about a civil lawsuit her family had filed against Express Cuts in February
2021.6 In a hearing outside the jury’s presence, Chavarria’s counsel asserted, under
4
This is also a pseudonym.
5
Trial court cause number 20-DCR-093435 for the February 2020 offense resulted
in appellate cause number 01-23-00303-CR. Trial court cause number 20-
DCR093436 for the October 2020 offense resulted in appellate cause number 01-
23–00302-CR.
6
At the hearing on the State’s motion in limine, the parties made arguments about
the admissibility of testimony about the civil lawsuit generally. They did not
identify any particular testimony that would be elicited, and, thus, did not address
the issue of the State’s rebuttal testimony about the civil lawsuit. Therefore,
nothing in the limine record served to preserve Chavarria’s complain on appeal.
3
Rule of Evidence 613, that he was “allowed to ask questions regarding motive,
questions regarding interest.” The State responded that it believed that Laura’s
testimony on the issue of the civil lawsuit would open the door “to [Chavarria’s]
prior sex offender registration requirements, because that was the reason for filing
a lawsuit.” The State asserted, “[W]hile the defense wants to make an assertion that
[the lawsuit] was motivated by finances or otherwise, the actual answer, which the
State would, then, feel like we’ve got the ability to say is: It wasn’t actually due to
financial motivation, but due to the fact that” Chavarria was “require[d] to
regist[er] and being a previously convicted sex offender was the reason that they
filed a lawsuit.” The State expressed the concern that Chavarria’s intent in eliciting
testimony about the civil lawsuit was to argue that Elizabeth fabricated her outcry
so that the family could seek remuneration from Express Cuts. Thus, the State
argued, it was necessary to allow it to ask questions regarding the family’s
motivations for filing the civil lawsuit.
As requested, the trial court allowed the parties to question Laura outside the
jury’s presence. In response to Chavarria’s counsel’s questions, Laura testified that
See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008) (holding that
motion in limine is preliminary matter and normally preserves nothing for
appellate review, so for error to be preserved with regard to subject of motion in
limine, objection must be made at time subject is raised during trial); see also
Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (holding that
contention urged on appeal must match with specific complaint made in trial court
to preserve error for review).
4
she filed a civil lawsuit against Express Cuts that requested money damages.
Chavarria’s counsel asked Laura, “Is this lawsuit based on a financial gain, ‘yes’ or
‘no’?” She answered, “Yes.” The State questioned her further about her motives
for filing the civil lawsuit, and she explained that she filed it because she “did not
want any other child to be hurt the way our daughter was.” She testified that the
catalyst for filing the lawsuit was when she discovered during an internet search
that Chavarria was already listed as a sex offender in the online registry. Laura
testified that, although the lawsuit sought damages, her intention in filing it was not
primarily to obtain money. Laura stated her family had not received any financial
reward or compensation as a result of filing the civil lawsuit.
After Laura gave this testimony outside the jury’s presence, defense counsel
and the State argued regarding the extent to which Laura’s testimony should be
permitted in front of the jury. The State argued: “[T]he idea I’m hearing [from] the
defense counsel [is] to bring out some sort of motive without allowing the State to
clarify the actual truth behind why the lawsuit was filed.” The State asserted that if
Chavarria’s counsel was “allowed to ask just the question [about the existence of
the lawsuit], it then makes it misleading to the jury under 403” unless the State is
allowed to ask “the follow-up as to why.” Thus, the State argued, Chavarria’s
questions about the civil lawsuit “opens the door to the fact that the defendant was
a publicly registered sex offender.”
5
Chavarria’s counsel argued, “[T]he fact remains, Your Honor, that the
witness, under [Rule of Evidence] 613, a witness’s bias or interest as it pertains to
this particular lawsuit is—is a fact question for the jury to decide whether it
impacts the credibility of that witness.” He asserted that the jury “has a right to
ponder on” whether “there was other motivation. Perhaps there was a money
issue.” He sought to ask the limited question: “Was there a lawsuit initiated as a
result of this incident,” without allowing the State to ask follow-up questions that
would reveal his status as a registered sex offender as one motive for the civil
lawsuit. The trial court responded, however, “I think we have to.” The trial court
asked Chavarria’s counsel whether he would ask about the civil trial, and counsel
responded that he would not, but he wanted to “make a bill of the record.” The trial
court responded, “Okay. Then we’re not going to talk about the civil case.”
Chavarria’s “record for bill of exception,” as stated on the record was:
I’m asking that [Laura’s] testimony be allowed—that I be allowed to
question her with respect to asking whether a civil lawsuit was
initiated, as a result of this incident in October. And the reason for
that, Judge, would be simply to establish a bias or interest in her
response in her testimony. In order for the jury to decide whether or
not they believe her.
The trial proceeded without Chavarria asking Laura about the civil lawsuit.
The State presented additional evidence, including Laura’s testimony about the
events at Express Cuts and Elizabeth’s outcry after the October 2020 incident. The
State also presented testimony about Elizabeth’s forensic interview at the
6
Children’s Assessment Center, testimony from an expert regarding why children
sometimes wait to disclose abuse, evidence from her exam by a Sexual Assault
Nurse Examiner, and DNA evidence indicating that Chavarria’s DNA was found
on a sample taken from Elizabeth’s bra.
The jury found Chavarria guilty of indecency with a child by contact for
both the February 2020 and October 2020 offenses. The trial court assessed his
punishment at confinement for life for each offense. These appeals followed.
Admissibility of Evidence
In his sole issue in each appeal, Chavarria argues that the trial court erred in
concluding that, if he questioned Laura regarding the civil lawsuit against him, he
would open the door to introduction of evidence of his sex-offender registration
status. He complains that he was prevented from presenting a full defense.
A. Standard of Review and Relevant Law
We review a trial court’s evidentiary rulings for abuse of discretion and
uphold them if they were within the zone of reasonable disagreement. Wells v.
State, 611 S.W.3d 396, 427 (Tex. Crim. App. 2020). The trial court’s ruling will be
upheld provided that its decision “is reasonably supported by the record and is
correct under any theory of law applicable to the case.” Carrasco v. State, 154
S.W.3d 127, 129 (Tex. Crim. App. 2005).
7
To preserve a challenge on evidentiary matters, the record must show that
the party made a timely and specific objection on the record, unless the specific
grounds are apparent from the context, and obtained an adverse ruling on that
objection. TEX. R. APP. P. 33.1(a); Montelongo v. State, 623 S.W.3d 819, 822 (Tex.
Crim. App. 2021); see TEX. R. EVID. 103(a) (providing that parties must preserve
claim of error in admissibility of evidence with timely objection). A defendant also
fails to preserve error when the contention urged on appeal does not match with the
specific complaint made in the trial court. Lovill v. State, 319 S.W.3d 687, 691–92
(Tex. Crim. App. 2009). In other words, an objection stating one legal basis may
not be used to support a different legal theory on appeal. See Heidelberg v. State,
144 S.W.3d 535, 537 (Tex. Crim. App. 2004).
Most complaints, even constitutional errors, can be waived on appeal if not
raised in the trial court. Garza v. State, 435 S.W.3d 258, 260–61 (Tex. Crim. App.
2014); see Reyna v. State, 168 S.W.3d 173, 179–80 (Tex. Crim. App. 2005)
(holding that appellant waived his issue under Confrontation Clause when he did
not mention it during his proffer of evidence to trial court). While no “hyper-
technical or formalistic use of words or phrases” is required in order to preserve
error, “the proffering party must ‘let the trial judge know what he wants, why he
thinks he is entitled to it, and to do so clearly enough for the judge to understand
him at a time when the judge is in the proper position to do something about it.’”
8
Golliday v. State, 560 S.W.3d 664, 670 (Tex. Crim. App. 2018). Thus, “to preserve
an argument that the exclusion of defensive evidence violates constitutional
principles, a defendant must state the grounds for the ruling that he seeks with
sufficient specificity to make the court aware of these grounds.” Id. at 670–71.
Preserving error is a “systemic requirement,” and if error has not been
preserved, we should not address the merits of that issue. Ford v. State, 305
S.W.3d 530, 532 (Tex. Crim. App. 2009); see also Johnson v. State, 169 S.W.3d
223, 228–29 (Tex. Crim. App. 2005) (“Ordinarily, a conviction is not overturned
unless the trial court makes a mistake.”).
B. Analysis
As a threshold issue, we consider what arguments were properly preserved
and presented to this Court for review. In his offer of proof, Chavarria asked that
he “be allowed to question [Laura] with respect to asking whether a civil lawsuit
was initiated, as a result of this incident in October” for the purpose of establishing
“a bias or interest in her response in her testimony.” The trial court did not exclude
Laura’s testimony on this issue or rule that Chavarria was not allowed to question
Laura about the civil lawsuit. The trial court asked Chavarria whether he wanted to
ask the question, and he declined based on the nature of the discussion among
himself, the State, and the trial court. With no ruling to exclude the testimony,
9
there is nothing for this Court to review for error. See TEX. R. APP. P. 33.1(a);
Montelongo, 623 S.W.3d at 822.
On appeal, Chavarria phrases his issue as a complaint that the trial court
“erred by ruling that testimony about [his] sex offender status was admissible, thus
denying [him] the constitutional right to a meaningful opportunity to present a
defense.” Chavarria argues for the first time on appeal that the trial court’s
handling of these evidentiary matters “operated to deny [him] the constitutional
right to a meaningful opportunity to present a defense” because “[t]estimony about
the civil lawsuit was relevant, reliable, and a vital portion of [his] fabrication
defense.” He argues that the trial court’s ruling here rose to the level of a
constitutional violation.
We first observe that Chavarria did not present any arguments in the trial
court regarding constitutional error, such as arguing that the ruling violated his
right to confrontation or his right to present a defense. See Lovill, 319 S.W.3d at
691–92 (holding that contention urged on appeal must match specific complaint
made in trial court to preserve error for appellate review). In the hearing outside
the jury’s presence, Chavarria referenced only the relevance of the evidence and
Rule of Evidence 613. He did not argue that the inability to question Laura would
effectively prevent him from presenting his defense or that the trial court’s ruling
improperly limited his right to confrontation. Thus, to the extent he complains now
10
that these evidentiary matters violated his rights under the Confrontation Clause or
other constitutional provisions, we conclude that the complaints are not preserved
for review. See Garza, 435 S.W.3d at 260–61 (holding that even constitutional
errors can be waived on appeal if not raised in trial court); Reyna, 168 S.W.3d at
179–80 (holding that appellant waived his issue under Confrontation Clause when
he did not mention it during his proffer of evidence to trial court); Broxton v. State,
909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (holding that appellant failed to
preserve his claim that he was denied right to present defense and right to due
process and due course of law because he did not make that objection at trial); see
also Golliday, 560 S.W.3d at 670 (“Parties are not permitted to bootstrap a
constitutional issue from the most innocuous trial objection, and trial courts must
be presented with and have the chance to rule on the specific constitutional basis
for admission because it can have such heavy implications on appeal.” (internal
quotes omitted)).
Furthermore, Chavarria’s argument mischaracterizes the trial court’s ruling.
Chavarria argued that, pursuant to Rule of Evidence 613, he was entitled to ask
Laura about the civil lawsuit because it could potentially reveal a bias or
motivation for Elizabeth and her family to make claims against him. The trial court
did not exclude this testimony. Rather, the trial court stated its belief that the State
should be permitted to ask follow-up questions regarding Laura’s motivation for
11
filing the civil lawsuit if Chavarria introduced the existence of the lawsuit in an
attempt to undermine her credibility. Even if we construe the trial court’s
statements that it “th[ought] we have to” allow the State to ask follow-up questions
about Laura’s motivation in filing the civil lawsuit as a ruling that Chavarria’s
status as a registered sex offender was admissible, we cannot conclude that the trial
court’s statements were erroneous or would have constituted an abuse of
discretion.
Rule of Evidence Rule 613 permits a party to examine a witness about her
bias or interest. See TEX. R. EVId. 613(b) (“When examining a witness about the
witness’s bias or interest, a party must first tell the witness the circumstances or
statements that tend to show the witness’s bias or interest.”). Rule 613 further
provides that “[a] witness must be given the opportunity to explain or deny the
circumstances or statements that tend to show the witness’s bias or interest” and
that “the witness’s proponent may present evidence to rebut the charge of bias or
interest.” See TEX. R. EVID. 613(b)(3). The trial court’s statement that it believed
the State should be permitted to ask follow-up questions about Laura’s motivation
in filing the civil lawsuit comports with the provisions of Rule 613(b)(3). See id.Chavarria essentially sought to present limited evidence to the jury to support his
argument that Elizabeth and her family had financial motives for fabricating the
allegations against him without allowing the State to correct or rebut that
12
implication. We observe, however, that inadmissible evidence may become
admissible if it corrects a false impression created by an opposing party. See
Houston v. State, 208 S.W.3d 585, 591 (Tex. App.—Austin 2006, no pet.) (“A
defendant opens the door by asking a question which creates a false impression
that the admission of extraneous offense evidence would correct.”); see also Tovar
v. State, 221 S.W.3d 185, 191 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(holding that, when defense questioning created false impression that video
contained exculpatory statement by complainant, State could introduce video);
Redmond v. State, 629 S.W.3d 534, 546 (Tex. App.—Fort Worth 2021, pet. ref’d)
(holding that, when defendant described robbing bank as “crazy decision” and
created impression it was out of character for him, State could introduce evidence
of other bank robberies); cf. TEX. R. EVID. 107 (“If a party introduces part of an
act, declaration, conversation, writing, or recorded statement, an adverse party may
inquire into any other part on the same subject. An adverse party may also
introduce any other act, declaration, conversation, writing, or recorded statement
that is necessary to explain or allow the trier of fact to fully understand the part
offered by the opponent.”).
Nevertheless, the trial court did not expressly rule during the hearing outside
the jury’s presence that Chavarria’s status on the sex-offender registry was
admissible. And, because Chavarria decided not to ask Laura about the lawsuit if
13
the State would be allowed to ask follow-up questions, the trial court was not
presented with an opportunity to rule on the admissibility of any specific follow-up
testimony. Chavarria argues that Laura’s testimony would have violated Rule 403,
but he made no such objection in the trial court because no such testimony
occurred. See, e.g., Montgomery v. State, 810 S.W.2d 372, 388–89 (Tex. Crim.
App. 1991) (holding that to preserve Rule 403 complaint, party must make specific
objection on basis of Rule 403).
Chavarria cites cases like Williams v. State, 273 S.W.3d 200 (Tex. Crim.
App. 2008) and Potier v. State, 68 S.W.3d 657 (Tex. Crim. App. 2002) to support
his argument, but those cases are distinguishable. In Williams, the Court of
Criminal Appeals considered whether the trial court denied the appellant’s “Sixth
Amendment right to present a defense and his Eighth Amendment right ‘to obtain
the jury’s effective consideration of his defensive mitigation evidence on
punishment’ when it excluded the hearsay statement of one of his accomplices
which purportedly supported his ‘factual and state-of-mind defense.’” 273 S.W.3d
at 231. Unlike Williams, the trial court here did not make a ruling excluding
testimony that Chavarria sought to admit in support of his defense. As discussed
above, the gist of the trial court’s statement during the hearing was that, if
Chavarria questioned Laura regarding her motive in filing the civil lawsuit, the
14
State would also be able to question her on the same topic. Thus, Williams is
inapposite.
In Potier, the Court of Criminal Appeals stated that “evidentiary rulings
rarely rise to the level of denying the fundamental constitutional rights to present a
meaningful defense.” 68 S.W.3d at 663. The court discussed limited circumstances
in which rulings excluding evidence might rise to the level of a constitutional
violation, including (1) when a state evidentiary rule categorically and arbitrarily
prohibits the defendant from offering otherwise relevant, reliable evidence which is
vital to his defense or (2) when a trial court’s clearly erroneous ruling excluding
otherwise relevant, reliable evidence which forms such a vital portion of the case
effectively precludes the defendant from presenting a defense. Id. at 659–62.
Neither of these circumstances is applicable here. Chavarria was not prohibited
from admitting the testimony he sought, and, as we concluded above, the trial
court’s ruling here did not exclude evidence, nor can we conclude that the trial
court’s evidentiary rulings were clearly erroneous. See id.7
We overrule Chavarria’s sole issue in each appeal.
77
Because we conclude that the trial court did not make any erroneous rulings, we
need not analyze Chavarria’s arguments regarding harm.
15
Conclusion
We affirm the judgments of the trial court.
Richard Hightower
Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
16