MEMORANDUM OPINION No. 04-09-00280-CR
John SOTO, Appellant
v.
The STATE of Texas, Appellee
From the 175th Judicial District Court, Bexar County, Texas Trial Court No. 2007-CR-10196 Honorable Pat Priest, Judge Presiding 1
Opinion by: Marialyn Barnard, Justice
Sitting: Catherine Stone, Chief Justice Phylis J. Speedlin, Justice Marialyn Barnard, Justice
Delivered and Filed: October 29, 2010
AFFIRMED
A jury convicted John Soto of eleven counts of aggravated sexual assault of a child.
Pursuant to Soto’s election, the jury assessed punishment at confinement for ninety-nine years on
nine counts, twenty years on another count, and twenty-five years on the remaining count. The
trial court ordered the sentences to run concurrently. On appeal, Soto contends the trial court
erred by: (1) denying his motion to suppress; (2) denying his motion to quash the indictment; (3)
1 The Honorable Pat Priest was sitting by assignment. 04-09-00280-CR
excluding certain evidence; (4) overruling his objection to the testimony of Dr. Nancy Kellogg
concerning diagnostic impressions and normal sexual examinations; and (6) overruling his
objection requesting complainant’s mother’s testimony be stricken from the record based on a
violation of rule 614 of the Texas Rules of Evidence.
BACKGROUND
Soto has not challenged the sufficiency of the evidence to support his conviction.
Accordingly, a detailed rendition of the facts is unnecessary, and we provide only the factual
background necessary for context.
Complainant, C.L., first came into contact with Soto when he was a twelve-year-old fifth
grader. According to C.L., Soto approached him one day after school and asked if C.L. would
like to play on Soto’s summer football team. C.L. stated Soto offered him $50.00 in exchange
for his agreement to play on the team. C.L., with his parents’ permission, agreed. Over the
course of the summer, Soto gave C.L. rides to and from practices and games, and the two
developed a relationship. C.L. testified the relationship ultimately changed, beginning when
Soto put his hand on C.L.’s leg during a ride home.
C.L. testified the first incident of sexual abuse occurred after Soto took C.L. dirt biking.
When the two returned to Soto’s house, C.L. went inside to shower. After showering, C.L.
claims Soto then sexually assaulted him by performing oral sex on him. Afterwards, according
to C.L., Soto apologized and drove C.L. home. C.L. recalled that during the summer more than
five such incidents occurred in which Soto performed oral sex on C.L. C.L. testified things
escalated and ultimately C.L. performed oral sex on Soto, and Soto anally assaulted C.L. C.L.
stated that during the time he was in contact with Soto, Soto assaulted him anally at least twelve
times–sometimes at Soto’s house, and sometimes at C.L.’s house. C.L. stated that when he
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attempted to stop the sexual assaults, Soto would beat C.L. with his fists and threaten the safety
of C.L.’s family until C.L. complied. C.L. also testified Soto forced C.L. to watch pornographic
videos depicting men and women having anal sex. C.L. stated he sent nude photographs of
himself to Soto.
According to C.L., the incidents ceased when Gabrielle Knight, C.L.’s mother, came
home unexpectedly, interrupting Soto’s sexual assault of C.L. Knight recalled Soto rushing into
a nearby bathroom before she could enter the room. According to Knight, Soto apologized and
claimed he was not feeling well. Knight was suspicious, so when Soto emerged from the
bathroom, Knight informed Soto that he was not allowed in her house unless she was there.
Knight testified other events had aroused her suspicions as well. On one occasion, she
discovered a threatening text message sent to C.L. from “Paul.” 2 Concerned, Knight took C.L.’s
laptop and phone 3, which were given to C.L. by Soto, to the police and requested they look into
the matter. Although no specific allegations were made at this time, subsequent forensic analysis
of the phone and computer uncovered data that concerned Detective Lisa Miller. Immediately
thereafter, Detective Miller subpoenaed the cell phone records of the phone formerly in C.L.’s
possession as well as Soto’s phone records. These records indicated that from February 12 to
April 12, 2006, more than 800 phone calls were exchanged between C.L. and Soto. 4 Detective
Miller also subpoenaed AT&T Internet records to determine who owned the e-mail address
“turtle3379@sbcglobal.net.” This inquiry revealed Soto was the account holder of “turtle3379”
as well as eighteen other e-mail accounts.
2 According to Soto, “Paul” was a friend of his who sent the message to C.L. as a joke. 3 According to C.L., Soto instructed C.L. to tell his mother that the phone was a gift from his girlfriend “Sue.” 4 According to Detective Miller’s testimony, text messages are recorded by Sprint, the carrier in this case, as one minute phone calls.
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After three unproductive interview attempts with C.L., Detective Miller contacted FBI
Special Agent Rex Miller, and requested he interview C.L at C.L.’s home. Agent Miller was
able to obtain information from C.L. that gave Detective Miller sufficient probable cause for a
search warrant for Soto’s home and a warrant for his arrest. Soto was arrested and ultimately
convicted of several counts of aggravated sexual assault of a child. He then perfected this
appeal.
ANALYSIS
Motion to Suppress
In his first point of error, Soto contends the trial court erred in denying his motion to
suppress. We disagree.
A trial court’s ruling on a motion to suppress is reviewed under a bifurcated standard of
review. Amador v. State, 221 S.W.3d 666, 673 (Tex. Crim. App. 2007); Guzman v. State, 955
S.W.2d 85, 89 (Tex. Crim. App. 1997). An appellate court does not conduct its own factual
review; rather, deference is given to the trial judge as the sole trier of fact, judge of the
witnesses’ credibility, and the respective weight to be given to their testimony. Weide v. State,
214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim.
App. 2000), modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.
2006). Because the trial court is in the best position to observe the witnesses’ appearance and
demeanor, the trial court is the sole judge of the truthfulness of the witnesses’ testimony. See
Ross, 32 S.W.3d at 855. Although great deference is given to the trial court’s evaluation of
historical facts, we review the court’s application of the law pertaining to those facts under a de
novo standard. Amador, 221 S.W.3d at 673. All evidence in a trial court’s motion to suppress
ruling is viewed “in the light most favorable to the trial court’s ruling.” State v. Iduarte, 268
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S.W.3d 544, 548 (Tex. Crim. App. 2008); State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim.
App. 2006). And, a trial court’s ruling will be upheld so long as support exists in the record and
the theory of law applied to the facts is correct. Iduarte, 268 S.W.3d at 548.
Soto claims the trial court erred in denying his motion to suppress because Detective
Miller’s affidavit, which supported the search warrant, contained deliberate falsehoods or
statements made in reckless disregard of the truth. Soto specifically challenges Paragraphs D
and F of the affidavit. Soto first argues that the statements in Paragraph D of the affidavit, which
allege over 800 phone calls between Soto and C.L. between February 12 and April 12, 2006,
were made to deliberately mislead the magistrate into believing each listed phone call in the
records was an actual voice conversation, rather than a series of daily text messages. Soto
contends the affiant’s statements ignored the possibility of innocent one-word text message
exchanges, and created a false appearance of an improper relationship between an adult and
child.
Soto also contends Paragraph F, which contained C.L.’s allegation that he sent nude
photographs of himself to Soto at Soto’s request, was false, and included in the affidavit to
induce the magistrate to find probable cause to issue the warrant. Soto supports his contention
by showing the allegation was unsubstantiated after a search of Soto’s home.
Soto contends that but for Paragraphs D and F, there would not have been sufficient
probable cause for a warrant, and the trial court erred in not striking those paragraphs and
granting his motion to suppress.
Under Franks v. Delaware,
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment
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requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.
438 U.S. 154, 155-56 (1978); see Harris v. State, 227 S.W.3d 83, 85 (Tex. Crim. App. 2007)
(adopting Franks standard). The Texas Court of Criminal Appeals has made it clear that to be
entitled to a Franks hearing a defendant must:
(1) allege deliberate falsehood or reckless disregard for the truth by the affiant, specifically pointing out the portion of the affidavit claimed to be false; (2) accompany these allegations with an offer of proof stating the supporting reasons; and (3) show that when the portion of the affidavit alleged to be false is excised from the affidavit, the remaining content is insufficient to support issuance of the warrant.
Harris, 227 S.W.3d at 83 (citing Cates v. State, 120 S.W.3d 352, 356 (Tex. Crim. App. 2003)
(quoting Ramsey v. State, 579 S.W.2d 920, 922-23 (Tex. Crim. App. 1979)). Apparently
deciding Soto made the initial showing required by Franks and Harris, the trial court held a
hearing based on Soto’s allegations. During this hearing, Soto questioned Detective Miller
regarding the information included in her affidavit. According to Detective Miller, information
pertaining to the “more than 800 calls” between Soto and C.L. was derived from the cell phone
records. She denied her statements relating to the calls were erroneous or false. Soto’s argument
challenging the failure of the affiant to differentiate between voice calls and text messages was
covered at the hearing during the examination of Detective Miller. Detective Miller explained
that “[n]ormally the text messages will show up as, like, a one-minute call.” The alleged
innocent nature of the exchanges between Soto and C.L. was suggested by Soto at the hearing,
but he did not support his allegations with any evidence. Even if she failed to consider the
potential innocent nature of the eight hundred plus exchanges, this amounted to nothing more
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than negligence on the part of Detective Miller, and “[a]llegations of negligence or innocent
mistake are insufficient” to warrant striking portions of an affidavit. Franks, 438 U.S. at 173.
As to the statements contained in Paragraph F of the affidavit and Soto’s claim that the
statements therein were included to deliberately mislead the magistrate into believing that this
picture would be found at Soto’s home or on his computer, we disagree with Soto’s contention
that the police should have first verified if they had possession of a photograph by examining the
contents of C.L.’s computer before including the statement in the affidavit. We also reject his
contention that the results of this search should have been included in the affidavit because it was
relevant to the implication that Soto possessed child pornography. According to Soto, because
the allegation was “completely unsubstantiated,” this statement was meant to mislead the
magistrate into believing probable cause existed.
According to Franks, the Fourth Amendment’s requirement for a truthful showing of
probable cause does not mean:
. . . “[T]ruthful” in the sense that every fact recited in the warrant affidavit is necessarily correct, for probable cause may be founded upon hearsay and upon information received from informants, as well as upon information within the affiant's own knowledge that sometimes must be garnered hastily. But surely it is to be “truthful” in the sense that the information put forth is believed or appropriately accepted by the affiant as true.
Franks, 438 U.S. at 164-65; see Janecka v. State, 937 S.W.2d 456, 462 (Tex. Crim. App. 1996).
Detective Miller’s statements were properly included in the affidavit because she believed and
accepted the information set forth in the affidavit as true. See id.
We agree with Soto that Franks requires that any information, which is shown by a
preponderance of the evidence to be false or deliberately misleading, be struck from the search
warrant affidavit. See Franks, 438 U.S. at 156; Harris, 227 S.W.3d at 85. And, a warrant will
be deemed void only if the remaining information contained in the affidavit is insufficient to
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establish probable cause. Franks, 438 U.S. at 156; Harris, 227 S.W.3d at 85. However, we hold
the trial court did not abuse its discretion by refusing to strike the complained of statements from
the affidavit. The trial court determined that the information contained in the affidavit was not
made in “reckless disregard for the truth that is mandated by Franks versus Delaware.” Because
the statements were properly part of the affidavit, we hold the motion to suppress was properly
denied.
Even if we assume Paragraphs D and F should have been struck from the affidavit, we
hold the affidavit would still have supported the issuance of the search warrant. Detective
Miller’s affidavit states AT&T Internet records established Soto was the accountholder of e-mail
address “turtle3379@sbcglobal.net.” This was suspicious given that C.L. claimed Soto
introduced him to a girl named “Sue” who apparently used the screen name “turtle3379.” C.L.
also told the authorities Soto added “Sue” to his friend list so they could begin communicating
on Yahoo Instant Messenger. Forensic analysis of C.L.’s computer, which was given to him by
Soto, revealed conversations between C.L.’s, “undecided1992,” and “turtle3379,” in which the
two discussed C.L.’s romantic relationship and sexual activity with an unnamed male.
Another paragraph in the affidavit recapitulates the major points of C.L.’s interview with
FBI special agents where he described several instances of forced sexual conduct with Soto.
C.L. also stated, and the affidavit relayed, Soto threatened C.L.’s life if C.L. ever told anyone
about the sexual contact. In one instance, Soto allegedly placed a knife to C.L.’s neck while
making such a threat.
The information regarding the e-mail conversations and that obtained from C.L.’s
interview with federal authorities was sufficient to give rise to probable cause to search Soto’s
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home. Therefore, even excluding Paragraphs D and F from the affidavit, we hold there was
sufficient evidence to support the warrant.
Motion to Quash
Soto next contends the trial court erred by overruling his motion to quash the indictment.
Soto was indicted on November 14, 2007, on nineteen counts of aggravated sexual assault of a
child, which allegedly took place between June 15, 2005 and March 18, 2006. 5 Soto filed a
motion to quash the indictment, which was denied. Soto filed a second motion to quash, which
was also denied. In support of this issue, Soto argues that although he was provided adequate
time for discovery, he was not placed on notice of the specific offenses he allegedly committed.
He further alleges there was insufficient information regarding the specific offenses to allow him
to adequately prepare for trial. 6
A trial court’s decision denying a motion to quash an indictment is reviewed de novo.
Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007). Once a motion to quash is
timely filed, the indictment must be analyzed to determine whether it states on its face the facts
necessary to allege that an offense was committed, to bar a subsequent prosecution for the same
offense, and to give the accused notice of the precise offense with which he is charged.”
DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988) (citing American Plant Food v.
State, 508 S.W.2d 598, 603 (Tex. Crim. App. 1974)); Rotenberry v. State, 245 S.W.3d 583, 586
5 Soto was first indicted on April 17, 2007, on nine counts of aggravated sexual assault of a child, which allegedly occurred between November 3, 2005 and March 18, 2006. However, after authorities interviewed C.L., they discovered the alleged offenses occurred nine months earlier than previously thought. Accordingly, the State dismissed the first indictment and later re-indicted Soto to accurately reflect the timeline of the alleged offenses. 6 The State contends Soto waived his right to complain about denial of his motion to quash. However, we hold Soto preserved his complaint by filing two motions to quash, both of which were filed before trial began. See TEX. CODE CRIM. PRO. ANN. ART. § 1.14 (b) (West 2005) (stating defendant waives right to object to defect, error, or irregularity in indictment only if he fails to object before the date upon which trial commences).
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(Tex. App.—Fort Worth 2007, pet. ref’d). This requirement is codified in article 21.11 of the
Texas Code of Criminal Procedure:
An indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.
TEX. CODE CRIM. PRO. ANN. ART. § 21.11 (West 2009). Additionally, article I, section 10 of the
Texas Constitution requires that the notice provided to the accused be clear from a reading of the
indictment. TEX. CONST. art. I, § 10; Livingston v. State, 739 S.W.2d 311, 321 (Tex. Crim. App.
1987); Moore v. State, 532 S.W.2d 333, 335 (Tex. Crim. App. 1976).
The indictment must be viewed as a whole in order to determine if the offense is
sufficiently charged in the indictment. DeVaughn, 49 S.W.2d at 67 (citing Dennis v. State, 647
S.W.2d 275, 279 (Tex. Crim. App. 1983); Church v. State, 552 S.W.2d 138, 140 (Tex. Crim.
App. 1977)). Additionally, the notice offered by the indictment must be examined in a light
most favorable to the accused, keeping in mind his presumption of innocence under the
constitution. DeVaughn, 749 S.W.2d at 68 (citing King v. State, 594 S.W.2d 425, 426 (Tex.
Crim. App. 1980)).
The indictment in this case stated, in pertinent part:
Count I on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the ANUS of [C.L.], a child who was younger than 14 years, by THE DEFENDANT’S SEXUAL ORGAN; Count II on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the SEXUAL ORGAN of [C.L.], a child who was younger than 14 years, to PENETRATE the MOUTH of THE DEFENDANT;
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Count III on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the MOUTH of [C.L.], a child who was younger than 14 years, by THE DEFENDANT’S SEXUAL ORGAN; Count IV on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the SEXUAL ORGAN of [C.L.], a child who was younger than 14 years, to PENETRATE the MOUTH of THE DEFENDANT; Count V on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the SEXUAL ORGAN of [C.L.], a child who was younger than 14 years, to PENETRATE the ANUS of THE DEFENDANT; Count VI on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the ANUS of [C.L.], a child who was younger than 14 years, by THE DEFENDANT’S SEXUAL ORGAN; Count VII on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the ANUS of [C.L.], a child who was younger than 14 years, by THE DEFENDANT’S SEXUAL ORGAN; Count VIII on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the MOUTH of [C.L.], a child who was younger than 14 years, by THE DEFENDANT’S SEXUAL ORGAN; Count IX on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the SEXUAL ORGAN of [C.L.], a child who was younger than 14 years, to PENETRATE the MOUTH of THE DEFENDANT; Count X on or about the 15th Day of June, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the SEXUAL ORGAN of [C.L.], a child who was younger than 14 years, to PENETRATE the ANUS of THE DEFENDANT; Count XI on or about the 5th Day of October, 2005, JOHN SOTO, hereinafter referred to as defendant, with the intent to arouse or gratify the sexual desire of any person, expose PART OF HIS GENITALS, knowing that [C.L.], A MALE CHILD YOUNGER THAN SEVENTEEN (17) YEARS, was present;
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Count XII on or about the 3rd Day of November, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly engage in sexual contact with [C.L.], A MALE CHILD YOUNGER THAN SEVENTEEN (17) YEARS by causing [C.L.] to touch PART OF THE GENTIALS of THE DEFENDANT with the intent to arouse or gratify the sexual desire of any person; Count XIII on or about the 3rd Day of November, 2005, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the MOUTH of [C.L.], a child who was younger than 14 years, by THE DEFENDANT’S SEXUAL ORGAN; Count XIV on or about the 28th Day of January, 2006, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the SEXUAL ORGAN of [C.L.], a child who was younger than 14 years, to PENETRATE the MOUTH of THE DEFENDANT; Count XV on or about the 28th Day of January, 2006, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly engage in sexual contact with [C.L.], A AMLE CHILD YOUNGER THAN SEVENTEEN (17) YEARS by touching PART OF THE GENTIALS of [C.L.] with the intent to arouse or gratify the sexual desire of any person; Count XVI on or about the 18th Day of March, 2006, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the MOUTH of [C.L.], a child who was younger than 14 years, by THE DEFENDANT’S SEXUAL ORGAN; Count XVII on or about the 18th Day of March, 2006, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the penetration of the ANUS of [C.L.], a child who was younger than 14 years, by THE DEFENDANT’S SEXUAL ORGAN; Count XVIII on or about the 18th Day of March, 2006, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly cause the SEXUAL ORGAN of [C.L.], a child who was younger than 14 years, to PENETRATE the ANUS of THE DEFENDANT; Count XIX on or about the 18th Day of March, 2006, JOHN SOTO, hereinafter referred to as defendant, did intentionally and knowingly engage in sexual contact with [C.L.], A MALE CHILD YOUNGER THAN SEVENTEEN (17) YEARS by causing [C.L.] to touch PART OF THE GENTIALS of THE DEFENDANT with the intent to arouse or gratify the sexual desire of any person;
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It is clear from a reading of the indictment that sufficient information is stated to enable Soto to
prepare an adequate defense. See TEX. CONST. art. I, § 10; TEX. CODE CRIM. PRO. ANN. ART.
§ 21.11; DeVaughn, 49 S.W.2d at 67. The indictment provides the date of each alleged offense,
the culpable mental state, the statutory elements of each alleged offense, and describes who did
what to whom. This is sufficient under the constitution, the code of criminal procedure, and
interpretive case law. See id. We therefore hold that the trial court did not err in denying Soto’s
motion to quash, and overrule this point of error.
Exclusion of Evidence
In his third and fourth points of error, Soto contends the trial court abused its discretion
by limiting his ability to elicit testimony from C.L. in three areas: (1) a juvenile felony theft case,
which was taken into consideration as part of a plea agreement in a juvenile burglary case; (2) a
fight between C.L. and his older brother; and (3) counseling C.L. received for inappropriately
touching another child, which occurred before the sexual assaults by Soto.
We review a trial court’s decision to admit or exclude evidence under an abuse of
discretion standard. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). The trial
court does not abuse its discretion if its ruling lies within the “zone of reasonable disagreement,”
and such a ruling must be upheld. Id. A ruling is erroneous only if it “is so clearly wrong as to
lie outside that zone within which reasonable persons might disagree.” McDonald v. State, 179
S.W.3d 571, 576 (Tex. Crim. App. 2005).
Juvenile Felony Theft
On January 8, 2008, C.L. pleaded true, in juvenile court, as a party to burglary of a
habitation. As part of a plea agreement, three other pending cases were taken into consideration:
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(1) possession of marijuana, zero to two ounces; (2) state jail felony theft; and (3) unauthorized
use of a motor vehicle.
At a hearing outside the presence of the jury, Soto’s counsel informed the court that he
intended to question C.L. about the felony theft and unauthorized use of a motor vehicle.
Relevant to these issues, the following exchange took place:
[Soto’s Counsel]: . . . [C]ertainly the felony theft that was taken into consideration where [C.L.] would have to say that it was true that he did those things in order to have it taken into consideration, I’ve got that felony[.]
The Court: State.
[The State]: Our position is that, given his juvenile status, that the defense counsel should not necessarily be allowed to go into those matters[.]
The Court: Do you have any legal authority for the admissibility of felonies that were taken into consideration as distinguished from resulting in adjudication?
[Soto’s Counsel]: . . . I do not have a case on point.
The Court: Okay . . . I rule that the burglary of a habitation and his status as a probationer in that case is admissible.
[The State]: Okay.
The Court: But none of the rest of it.
[Soto’s Counsel]: I understand.
The Court: If you find me a case that causes me to reconsider, I’ll do it, but that’s my ruling right now.
[Soto’s Counsel]: I understand . . . and did want the record to reflect that for these cases to have been dismissed, and they were taken into consideration as simply being dismissed, the Respondent in that case would have to admit that he, in fact, did commit the offenses that he had been accused of committing.
[The State]: But – Okay.
The Court: That is true. My ruling remains the same unless you show me some authority.
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On appeal, Soto argues evidence of C.L.’s juvenile felony theft was admissible under rule
404(a)(2) of the Texas Rules of Evidence, which provides that evidence of a pertinent character
trait of a victim is admissible when offered by the accused. TEX. R. EVID. 404(a)(2). However,
nothing in the above-quoted exchange establishes Soto informed the court that it was seeking
admission of the evidence pursuant to rule 404(a)(2). To preserve an issue for appellate review,
rule 33.1 of the Texas Rules of Appellate Procedure requires the appellant to have made “a
timely request, objection, or motion that stated the ground for the ruling that the complaining
party sought from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context[.]” TEX. R. APP. P.
33.1(a)(1)(A). Soto’s objection was not made “with sufficient specificity to make the trial court
aware of the complaint” or to allow this court to determine the grounds of the request. See id.;
Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002) (stating preservation of error requires
complaining party to raise specific objection and acquire ruling on that objection). Soto’s
appellate contention that C.L.’s felony theft was admissible under rule 404(a)(2) was not
presented to the trial court, nor was it apparent from the record. In fact, when the trial court
specifically asked Soto’s counsel for legal support favoring admissibility, counsel conceded he
had none. Soto’s counsel asserted no legal basis for his request to admit evidence of the felony
theft. Accordingly, we find that Soto waived this issue for purposes of appeal.
C.L.’s Counseling
At another hearing outside the presence of the jury, Soto questioned C.L. about
counseling C.L. received before he met Soto, for “inappropriately touching another child.” C.L.
admitted he had inappropriately touched a child, and saw a counselor as a result. Soto almost
immediately changed his line of questioning to cover a fight C.L. had with his brother. In that
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fight, C.L. admitted to standing up to his brother and defending himself. At the conclusion of
Soto’s questions to C.L., the following exchange occurred:
The Court: Okay. Tell me why you think any of this is admissible.
[Soto’s Counsel]: I believe that the second portion is admissible because it goes to the fact that the child knew of, had the ability and had the propensity for physically defending himself against any attackers.
The Court: That’s overruled. What else?
[Soto’s Counsel]: I believe those are all the issues that I have outside the presence.
Soto contends on appeal the trial court erred when it excluded evidence of counseling
C.L. received for inappropriately touching another child. However, Soto never presented an
argument for the admissibility of the inappropriate touching or counseling. Rather, counsel
skipped over the subject entirely and argued only for the admissibility of a fight C.L. had with
his brother. As stated above, to be entitled to appellate review of a trial court’s ruling, a timely,
specific request that includes the grounds for the ruling sought must be made. TEX. R. APP. P.
33.1(a)(1)(A). Additionally, the complainant must show the trial court ruled on the request or
refused to rule, and the complainant objected to the refusal. Id. R. 33.1(a)(2). As the exchange
between the trial court and Soto clearly illustrates, Soto failed to present a theory regarding the
admissibility of the inappropriate touching and counseling evidence, and also failed to obtain a
ruling from the trial court with regard to that evidence. Soto seemingly abandoned his request to
admit this evidence, arguing only for the admission of the evidence of the fight between C.L. and
his brother. We therefore hold Soto waived error regarding the admission of C.L.’s counseling
for inappropriate touching.
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Fight with Brother/Officer’s Testimony
As noted above, Soto sought to admit evidence of a fight in which ten or eleven-year-old
C.L. threw a knife with a six-inch blade, hitting his older brother in the back of the head. During
the fight, C.L. threatened to kill his brother. Soto urged the trial court to admit this evidence,
arguing it was “highly relevant to both his tendency to fight when challenged, rather than to
submit without reporting it.” In other words, by admission of the evidence Soto sought to
establish no sexual assault occurred, because if it had, C.L. would have fought and reported it.
The trial court overruled Soto’s request to admit evidence of the fight.
After the State rested, Soto sought admission of this evidence a second time. This time,
however, Soto sought to introduce testimony from the reporting officer, San Antonio Police
Officer Mark Bjugstad, who was called to C.L.’s house during this fight. Officer Bjugstad was
expected to testify to C.L.’s demeanor during the fight, that C.L. admitted throwing the knife at
his brother, and that C.L. threatened his brother if his brother ever attacked him again. The trial
court denied Soto’s request to admit this evidence. On appeal, Soto argues the trial court erred
by denying him the opportunity to question C.L. about the fight with his brother in the presence
of the jury. Soto also contends that pursuant to rule 404(a)(2) of the Texas Rules of Evidence,
the trial court erred in excluding the testimony of Officer Bjugstad.
Generally, character evidence is inadmissible if offered by a party to prove an
individual’s actions on a particular occasion were in conformity with his character. TEX. R.
EVID. 404(a). However, rule 404(a)(2) provides an exception, which permits admission of
“evidence of a pertinent character trait of the victim of the crime offered by an accused.” TEX.
R. EVID. 404(a)(2). “A pertinent trait is ‘one that relates to a trait involved in the offense charged
or a defense raised.’” Stitt v. State, 102 S.W.3d 845, 849 (Tex. App.—Texarkana 2003, pet.
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ref’d) (quoting Spector v. State, 746 S.W.2d 946, 950 (Tex. App.—Austin 1988, pet. ref’d)); see
BLACK’S, LAW DICTIONARY (8th ed. 2004) (defining “pertinent” as pertaining to the issue at hand
or relevant) (emphasis added). Soto contends C.L.’s fight with his brother is “highly relevant”
and should have been presented to the jury because it illustrates the victim’s “tendency to fight
when challenged.” However, Soto fails to show how the victim’s propensity to fight when
challenged is a pertinent character trait which has any relevance in a sexual assault of a child
case. See Vinson v. State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008) (stating proponent of
evidence has burden of proving proffered evidence is admissible). To be relevant, the evidence
in question must have a “tendency to make the existence of any fact that is of consequence to the
determination of the action more probable or less probable than it would be without the
evidence.” TEX. R. EVID. 401. Soto fails to show C.L.’s alleged propensity to fight with a
sibling is a fact of consequence, which makes the sexual assault less likely to have occurred.
Thus, we hold the trial court did not abuse its discretion in refusing to admit the evidence.
We next address Soto’s contention that the trial court erred in excluding the testimony of
Officer Bjugstad. Soto argues Officer Bjugstad would have testified that during the incident,
C.L. used “extreme profanity towards his parents” and threatened to kill his brother. In essence,
Soto believed the officer’s testimony would illustrate C.L.’s “propensity to stand up to adults
when challenged.” In this instance, Soto argues C.L. would have cursed at and physically
threatened Soto had Soto actually sexually assaulted C.L. This argument fails for the same
reasons stated above. C.L.’s propensity or ability to stand up to Soto during a sexual assault is
not a valid defense and has no relevance as to whether the act occurred. In fact, C.L. admitted
attempting to thwart Soto’s sexual assaults, but when he did Soto threatened C.L. and C.L.’s
family.
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Although Soto contends admissibility is governed by rule 404(a)(2), he in fact challenged
the veracity of C.L.’s accusations, stating “[the evidence] is certainly pertinent, in that it [is]
directly related to Soto’s defense that [C.L.] was not telling the truth when he accused [] Soto.”
This appears to be an attempt to bypass rule 608(b), which precludes the use of “[s]pecific
instances of the conduct of a witness, for the purpose of attacking or supporting the witness’
credibility . . . on cross-examination of the witness . . . .” TEX. R. EVID. 608(b). Soto’s attempt
to attack C.L.’s character for truthfulness using Officer Bjugstad’s testimony is an impermissible
attempt to cast an unfavorable light on the victim. Officer Bjugstad does not have a basis of fact
to testify as to C.L.’s character for truthfulness; instead his testimony referencing this specific
instance of conduct, at most, would establish C.L. exhibited violent characteristics.
Even assuming it was error to exclude the evidence of the fight and Officer Bjugstad’s
testimony relating to it, we hold such error was harmless. See TEX. R. APP. P. 44.2(b). Soto
argued admissibility based on the rules of evidence, i.e., non-constitutional error, and therefore
reversal is necessary only if the error affected Soto’s substantial rights. We hold the error did not
affect Soto’s substantial rights, and was therefore harmless.
Sixth Amendment
In addition to the errors asserted above, Soto makes a vague allegation that he was denied
his Sixth Amendment right to confront the witness against him because his cross-examination of
C.L. was limited in the three areas discussed above. However, at trial, Soto did not raise a Sixth
Amendment or confrontation clause objection. Constitutional errors, such as the Sixth
Amendment claim asserted here by Soto, are waived if not raised at trial. See Wright v. State, 28
S.W.3d 526, 536 (Tex. Crim. App. 2000) (holding Sixth Amendment claim waived by failing to
object on that basis at trial), superseded by statute on other grounds by TEX. CODE CRIM. PROC.
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ANN. art. 37.071 (West Supp. 2010). Accordingly, we hold any complaint based on the Sixth
Amendment was waived.
Admission of Evidence
Soto’s fifth point of error concerns the testimony of the State’s medical expert, Dr. Nancy
Kellogg. Dr. Kellogg was called to the stand to interpret the results of C.L.’s sexual assault
examination, which was conducted by Dr. Jim Anderst. 7 On appeal, Soto argues Dr. Kellogg’s
testimony regarding the “diagnostic impression” section of Dr. Anderst’s report and her
explanation of the significance of a normal examination were “unnecessary and inadmissible”
because her testimony did not tell the jury “anything that it could not have deduced on its own,”
and that the testimony was “a comment on the truthfulness of [C.L.].”
As stated previously, we review the trial court’s evidentiary rulings under an abuse of
discretion standard. Powell, 63 S.W.3d at 438. At trial, Soto, relying on Salinas v. State, 166
S.W.3d 368 (Tex. App.—Fort Worth 2005, pet. ref’d), objected only to Dr. Kellogg “drawing
any conclusions” from the victim’s normal examination and medical history. Thus, Soto’s
complaint on appeal does not comport with the objection raised at trial.
A defendant’s appellate complaint must comport with his trial objection or the defendant
has waived appellate review. Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999);
Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991); see also Edwards v. State, 97
S.W.3d 279, 287 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding that “[a]n
objection stating one legal basis may not be used to support a different legal theory on appeal.”).
Soto’s claim on appeal that Dr. Kellogg’s testimony spoke to the truthfulness of C.L.’s testimony
and was unnecessary because the jury could draw its own inferences and conclusions without her
7 Dr. Anderst was unavailable to testify at trial.
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testimony does not comport with his trial objection. See Salinas, 166 S.W.3d at 371.
Accordingly, we hold Soto has waived any error.
Rule 614 Violation
In his final point of error, Soto argues the testimony of C.L.’s mother, Gabrielle Knight,
should have been struck from the record after it was discovered that she violated rule 614 of the
Texas Rules of Evidence. Rule 614 states that, “[a]t the request of a party the court shall order
witnesses excluded so that they cannot hear the testimony of other witnesses.” TEX. R. EVID.
614. Rule 614 is commonly referred to as “the Rule.” The purpose of “the Rule” is to prevent
witnesses from changing their testimony based on the testimony of another. Webb v. State, 766
S.W.2d 236, 239 (Tex. Crim. App. 1989). Additionally, it improves the jury’s ability to decipher
false testimony by revealing inconsistencies in witnesses’ testimony. White v. State, 958 S.W.2d
460, 462 (Tex. App.—Waco 1997, no pet.).
Before opening statements, the State invoked “the Rule,” and the trial court instructed the
witnesses they could speak about the case only with their attorneys. Immediately after testifying,
C.L.’s mother was observed in the hallway by a criminal defense attorney, who was not involved
in the case, in what he believed to be a discussion of her testimony with C.L. This attorney
proceeded to the courtroom intending to inform the State about what he had witnessed. Unable
to make contact with the State’s attorneys, the attorney reported his observation to Soto’s
attorney via a handwritten note. At the first opportunity, Soto raised the issue with the trial
court. The court held a hearing with C.L. and his mother to determine if either witness had
violated “the Rule.”
At the hearing, the attorney testified he heard about thirty seconds of a conversation
between C.L. and his mother. He stated he overheard C.L. asking Knight what she had testified
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about, and responded with something about “the guy got thrown out of the house or something.”
He further stated it sounded as though the two were “talking about something about the wife, it
sounded like the defendant, that he had left the house.” Knight denied discussing her testimony
with her son. The trial court determined no serious harm had occurred and advised the State to
remind its witnesses of “the Rule.”
Later, Soto objected when Knight was called to testify, alleging the previously asserted
violation of rule 614. The objection was again overruled. Subsequently, in his motion for new
trial, Soto again argued Knight’s testimony should have been struck, and the failure to strike
resulted in an unfair trial. The motion for new trial was denied.
It is within the trial court’s discretion to allow the testimony of a witness who has
violated rule 614. Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996). On appeal, we
presume the trial court acted within its power unless an abuse of discretion is shown. Id. In
reviewing a trial court’s decision to allow testimony after an alleged violation of “the Rule,” the
reviewing court looks at whether the defendant was “harmed or prejudiced by the witness’s
violation,” i.e., was there injury to the defendant. Id. The court of criminal appeals has
suggested two criteria for determining injury or prejudice: (1) whether the witness actually
conferred with or heard testimony of other witnesses, and (2) whether the witness’s testimony
contradicted testimony of a witness from the opposing side or corroborated testimony of a
witness she had conferred with or heard. Id. (citing Webb v. State, 766 S.W.2d 236, 240 (Tex.
Crim. App. 1989)).
The testimony of the attorney who allegedly overheard Knight speaking with her son
conflicted with Knight’s testimony. Thus, the trial court’s determination of whether there was,
in fact, a violation of “the Rule,” turned on the credibility of the witnesses. See Manzi v. State,
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88 S.W.3d 240, 254 (Tex. Crim. App. 2002) (noting reviewing courts defer to trial court’s
factual determination because trial court is “‘Johnny-on-the-spot,’ personally able to see and hear
the witnesses testify[,]” and make determinations based on demeanor, tone of voice, hesitancy of
speech, shoulder shrugs, jaw tightening, or clenched fists). Because the evidence was
conflicting, it is unclear if an actual violation occurred, and the trial court could have determined
there was, in fact, no violation. Accordingly, the trial court was within its discretion to admit
Knight’s testimony, believing she had not violated rule 614.
Soto argues Knight’s testimony at the sentencing phase of the trial, wherein she discussed
moving from her family’s residence of ten years, corroborated C.L.’s testimony during the guilt
phase of the trial. During her testimony, Knight was asked to explain the motivation and
circumstances surrounding her family’s move across town after Knight went to police about
Soto. C.L. had previously testified about the move. We hold that although Knight’s testimony
about the move was the same as C.L.’s, this is insufficient to establish they conferred about that
testimony so as to establish corroboration. The defense attorney did not testify he heard anything
about the family moving; rather, he heard a discussion about someone being thrown out of a
house. On this basis, we cannot say Soto was injured by the trial court’s decision to allow
Knight to testify; there was no abuse of discretion.
Soto also contends Knight’s testimony opposing Soto’s probation contradicted testimony
by Soto’s wife and father. In her testimony, Knight described C.L.’s fear that he would be
sexually assaulted or physically harmed by Soto. Soto’s wife and father attested to Soto’s
willingness to follow the rules and their desire to have Soto’s help with his ailing mother. We
see no contradiction; rather we see divergent opinions upon whether Soto should be given
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probation. Moreover, there was nothing in the defense attorney’s testimony to suggest a
discussion between Knight and C.L. about this issue.
In sum, it was within the discretion of the trial court to allow Knight to testify during the
punishment phase of the trial. See Bell, 938 S.W.2d at 50. Because the trial court could have
found no violation of “the Rule,” or that any violation failed to injure Soto, we hold there was no
abuse of discretion and overrule Soto’s final point of error.
CONCLUSION
We overrule Soto’s issues, and affirm the trial court’s judgment.
Marialyn Barnard, Justice
Do Not Publish
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