NUMBER 13-13-00126-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JULIAN HOMERO VEGA, Appellant, v.
THE STATE OF TEXAS, Appellee.
On appeal from the 332nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Rodriguez, Garza, and Benavides Memorandum Opinion by Justice Benavides
By six issues, which we reorganize and address as four, appellant Julian Homero Vega appeals his conviction for aggravated sexual assault of a child younger than fourteen years of age, a first-degree felony. See TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2013 3d C.S.). Vega asserts that (1) the evidence is
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legally insufficient to sustain his conviction; (2) the trial court erred by allowing his motion for new trial to be overruled by operation of law; (3) the trial court committed reversible error by admitting testimony pertaining to the credibility of the complainant, J.C.1; and (4) the trial court erred by excluding impeachment testimony regarding J.C.’s prior sexual knowledge. We affirm.
I. BACKGROUND
A Hidalgo County grand jury indicted Vega on two counts of aggravated sexual assault of a child younger than fourteen years of age, see id., and one count of indecency with a child by contact. See id. § 21.11 (West, Westlaw through 2013 3d C.S.). Vega was tried before a Hidalgo County jury, and the record reveals the following facts:
In early January 2012, a parent in the La Joya Independent School District alerted school officials that J.C., one of her daughter’s friends, told her daughter that she was being sexually abused at home. Officials called J.C. into the school’s office for a conference with the school’s principal, supervisor, and counselor. School counselor Cruz Alvarez testified that she was present at the meeting with J.C. and that J.C. made an outcry of abuse at home by Vega, her uncle. According to Alvarez, J.C. told the school officials that the abuse took place over the preceding New Year’s holiday. Alvarez stated that the authorities were then called to the school, including persons from Child Protective Services, the La Joya ISD Police Department, and the Hidalgo County Sheriff’s Office.
1 Because she is a minor, we will identify the complainant only by her initials.
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Hidalgo County Sheriff’s Deputy Bobby Barron responded to the outcry call at the school. Deputy Barron testified that he spoke to J.C. that day, and J.C. reported sexual abuse by Vega. Deputy Barron testified that J.C. told him that Vega entered her bedroom as she slept in the early morning hours of New Year’s Day 2012, forced himself on top of her, and put his penis inside of her vagina. According to Deputy Barron, J.C. identified Vega by his haircut and a “pink and black shirt” that he wore that night. Deputy Barron testified that an investigator from the Hidalgo County Sherriff’s Office was dispatched to the school for further handling of the case.
After the outcry was made, Hidalgo County Sheriff’s Investigator Miguel Lopez took over the investigation of this case. According to Investigator Lopez, J.C. was taken to the Child Advocacy Center to be interviewed by a forensic examiner. Investigator Lopez stated that he watched the forensic interview in its entirety. According to Investigator Lopez, J.C. told the examiner that, following the sexual contact with Vega, it hurt when she urinated. J.C. was then sent to Mission Regional Medical Center for a medical examination.
Evonne Garza, a sexual abuse nurse examiner and Mission Regional Medical Center’s Forensic Program Coordinator, testified that she conducted a sexual abuse examination of J.C. Nurse Garza testified that J.C. reported abuse by Vega. Nurse Garza’s examination revealed a “healed tear” on J.C.’s hymen at “6:00.” According to Nurse Garza, the hymen is the “circular tissue that goes around the opening of the entryway of the vagina.” Nurse Garza further explained that a “healed tear” means that a tear is present and has already healed or was in the process of healing. Nurse Garza stated that tears in the vaginal area heal quickly, usually “within a couple of days.”
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Finally, Nurse Garza testified that the location of the tear was “consistent” with the history given by J.C. and that the tear appeared to be “more of a penetrative injury.”
J.C. also testified. According to J.C., she and her family used to live in a home on the same property as Vega. J.C. recalled three separate incidents of abuse by Vega. The first incident took place in November 2011, when she was home alone and Vega entered her house drunk. According to J.C., she pretended to be asleep that day so that Vega would leave her alone. Instead, Vega forcibly removed J.C.’s pants and “started to touch [her]” “with his fingers.” J.C. testified that Vega made her feel “uncomfortable” that day. J.C. stated that Vega told her afterward not to tell anyone about what had happened and that he would buy her clothes. J.C. recounted a second incident that took place in December 2011. According to J.C., Vega tried to enter her home, and J.C. recalled that she hid from Vega in a pile of clothes. Eventually Vega entered the home and began looking for her.
The final incident took place in the early morning hours of New Year’s Day 2012.
According to J.C., she and her family members had a party at their home, in which they ate food and popped fireworks to celebrate the New Year. Vega was also at the gathering that night drinking beer. After they finished setting off the fireworks, J.C. went inside her house to go to sleep. She recalled that her father left that evening to go to work, while her other family members cleaned up after the party. J.C. and her brother entered the home around 1 or 2 o’clock in the morning and watched a cartoon on the couch before they both fell asleep. J.C. stated that she turned off the television, left her brother sleeping on the couch, and went to her bed to sleep. J.C. then recalled that she heard someone trying to open the door to her house, but the noise stopped. The noise
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later resumed, the door opened, and J.C. identified the person who opened the door as Vega. J.C. testified that she knew it was Vega because he had received a haircut that day, and she identified Vega by his haircut. J.C. also recalled that Vega was “drunk” and wore blue plastic gloves that night. J.C. testified that Vega then took off his pants as well as her pants and held her arms down as he got on top of her as she lay in the bed. J.C. stated that Vega began to move “up and down” and inserted his “private part” inside of her “private part.” According to J.C., Vega’s actions made her feel “uncomfortable” and “shocked.” After Vega finished, he stayed with her for a short period of time and then got off the bed and left. J.C. testified that she urinated after the encounter and that it burned to urinate. Later that morning, J.C. tried to wake up her brother to tell him what had happened, but her brother did not wake up. J.C. admitted that she never told her father about what had happened because she was scared. J.C. stated that she eventually told her friend from school about the abuse because she “wanted at least someone to know, just one person.”
Several witnesses testified in Vega’s defense. The first was Vega’s niece, Cecilia Carreon, who claimed that Vega is actually J.C.’s father. Carreon testified that unidentified individuals attempted to make deals with Vega prior to trial, including an attempt to induce him to sign over a car title in exchange for J.C. dropping any charges against him. Carreon admitted that she was not present at the home during the New Year’s Day 2012 party.
Vega also testified. According to Vega, he is J.C.’s biological father. Vega admitted to being at the same gathering on New Year’s Eve, drinking beer and eating tamales with his wife, but he denied having any sexual encounter with J.C. Vega
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testified that he thinks that J.C. was affected by learning that Vega was her biological father. Vega admitted to having a drinking problem.
After the State rested, it abandoned the indecency with a child charge, but moved forward with prosecution of the two counts of aggravated sexual assault. The jury found Vega guilty of aggravated sexual assault of a child as alleged in count one of the indictment (the New Year’s Day 2012 incident) and acquitted him of aggravated sexual assault of a child as alleged in count three of the indictment. The trial court accepted the jury’s verdict and sentenced Vega to eighteen years’ imprisonment with the Texas Department of Criminal Justice, Institutional Division. This appeal followed.
II. SUFFICIENCY CHALLENGE By his second and third issues, Vega asserts that the evidence is insufficient to sustain his conviction.2 A. Standard of Review and Applicable Law We apply the standard articulated in Jackson v. Virginia to determine whether the evidence is sufficient to support a criminal conviction. 443 U.S. 307, 319 (1979); see Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (holding that the Jackson standard of review is the “only standard” that should be applied in a sufficiency review). Under Jackson, we examine the evidence in the light most
2We note that by his second issue, Vega complains that the evidence is factually insufficient to support the verdict and the trial court’s judgment, and by his third issue, Vega complains that the evidence is legally insufficient to support the verdict and the trial court’s judgment. The Texas Court of Criminal Appeals has held that there is “no meaningful distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis factual-sufficiency standard” and that the Jackson standard “is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt.” Brooks v. State, 323 S.W.3d 893, 902 – 03, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, we will review Vega’s claims of evidentiary sufficiency under a “rigorous and proper application” of the Jackson standard of review as legal sufficiency issues. Id. at 906–07, 912.
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favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 443 U.S. at 319.
The elements of the offense are measured as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.
Under a hypothetically correct jury charge, as authorized by the indictment in this case, Vega is guilty of aggravated sexual assault of J.C. if he intentionally or knowingly caused the penetration of J.C.’s sexual organ by Vega’s sexual organ and that J.C. was younger than fourteen years of age at the time of the incident. See TEX. PENAL CODE ANN. § 22.021.
We defer to the jury's determinations of credibility and weight to be given to the evidence because jurors are the sole fact-finders. See Brooks, 323 S.W.3d at 899; see also TEX. CODE CRIM. PROC. ANN. art. 38.04 (West, Westlaw through 2013 3d C.S.) (“The jury, in all cases, is the exclusive judge of the facts proved, and of the weight to be given to the testimony. . . .”). Each fact need not point directly and independently to Vega’s guilt, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, or party status, and circumstantial evidence alone can be sufficient to establish
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guilt. See Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012); Hooper, 214 S.W.3d at 13. The testimony of a child sexual abuse victim alone is sufficient to support a conviction for aggravated sexual assault. See Gonzalez Soto v. State, 267 S.W.3d 327, 332 (Tex. App.—Corpus Christi, no pet.) (internal citations omitted). Courts give wide latitude to testimony given by child victims of sexual abuse. Id. The victim's description of what happened to her need not be precise, and she is not expected to express herself at the same level of sophistication as an adult. Id. Finally, there is no requirement that the victim's testimony be corroborated by medical or physical evidence. Id.
B. Discussion Vega specifically argues that the State failed to prove that Vega is the one who committed the act of aggravated sexual assault. We disagree.
J.C. testified that she was able to identify Vega on the night in question because he had received a haircut earlier that day and that she was able to view Vega’s haircut in the bedroom through the next door neighbor’s lights that shined through her window, which illuminated Vega’s head. Vega contends that this testimony is insufficient, however, because J.C. “did not testify that she saw [Vega’s] facial features, or that she heard his voice, or that she recognized [Vega’s] body structure.” Furthermore, Vega argues that J.C. did not point out that Vega sported “unique hair” such as a “Mohawk” or “long pony tail” to distinguish him from others. Even assuming without deciding that J.C.’s identification-by-haircut was insufficient, Deputy Barron testified that during his investigation, J.C. identified Vega as the perpetrator not only by his haircut, but also by the “pink and black shirt” that he wore that night. Moreover, J.C. and her family lived in
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a home next door to Vega’s home, and while Vega’s biological relationship to J.C. was questioned at trial, the evidence is clear that Vega was not a stranger to J.C. In our review of the sufficiency of the evidence, we are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of a witness’s credibility and the weight to be given to her testimony. See Brooks, 323 S.W.2d at 899. Thus, considering the evidence of Vega’s haircut as well as other circumstantial evidence surrounding his relationship with J.C. as neighbors and family members, we defer to the jury’s determination that J.C. sufficiently identified Vega as the perpetrator.
Accordingly, after viewing the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Vega was the perpetrator of the aggravated sexual assault of J.C. We overrule Vega’s second and third issues.
III. HEARING ON VEGA’S MOTION FOR NEW TRIAL By his first issue, Vega asserts that the trial court erred in allowing his motion for new trial to be overruled by operation of law when the motion raised matters that were not determinable from the record and Vega did not waive his attendance at said hearing.3 A. Standard of Review and Applicable Law A hearing on a motion for new trial serves a two-fold purpose: (1) permits the trial court to decide whether the cause shall be retried and (2) prepares a record for presenting issues on appeal in the event the motion is denied. Smith v. State, 286 S.W.3d 333, 338 (Tex. Crim. App. 2009). Despite the recognition that the opportunity to
3 We construe this issue as a complaint about the trial court’s failure to hold a hearing on his motion for new trial and will analyze it as such.
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prepare a record for appellate review makes a hearing on a motion for new trial a critical stage, the holding of such a hearing is not an absolute right and is not required when the matters raised in the motion for new trial are subject to being determined from the record. See id. However, a trial court abuses its discretion in failing to hold a hearing on a motion for new trial when that motion raises matters which are not determinable from the record, because to hold otherwise would deny the accused of meaningful appellate review. See id.
But even if a defendant has raised matters that are not determinable from the record, the defendant is not entitled to a hearing on his motion for new trial unless he establishes the existence of reasonable grounds showing that the defendant could be entitled to relief. See id. at 339 (citations omitted). Thus, as a prerequisite to a hearing when the grounds in the motion are based on matters not already in the record, the motion must be supported by an affidavit, either of the defendant or someone else, specifically setting out the factual basis for the claim. Id. The affidavit need not establish a prima facie case, or even reflect every component legally required to establish relief. Id. Rather, the affidavit is sufficient if a fair reading of it gives rise to reasonable grounds in support of the claim. Id. However, conclusory affidavits and those affidavits unsupported by facts do not provide requisite notice of the basis for the relief claimed; thus, no hearing is required. Id.
We review a trial court’s denial of a hearing on a motion for new trial for an abuse of discretion. See id at 339. We will reverse only when the trial court’s ruling was so clearly wrong as to lie outside the zone of reasonable disagreement. See id. Our review is limited to the trial court’s determination of whether a defendant has raised
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grounds that are both undeterminable from the record and reasonable, meaning they could entitle the defendant to relief. Id. at 340. If the trial court finds that a defendant has met the criteria, he has no discretion to withhold a hearing, and such a failure to hold a hearing after an affirmative finding amounts to an abuse of discretion. Id.
B. Discussion Here, Vega asserted two grounds in support of his motion for new trial: (1) that the verdict is contrary to law and evidence; and (2) that a new trial should be granted in the interest of justice. In further support of his motion, Vega attached four separate affidavits from Dulce Carreon, Margarita Bernal, Magda Karina Padilla, and B.V.4 Carreon and Bernal’s affidavits related to the portion of the trial in which J.C.
testified. Carreon and Bernal’s affidavits state that they each witnessed a woman named Claudia Treviño enter the courtroom while J.C. testified and that Treviño coached J.C.’s testimony by the use of various head signals. This same issue was brought to the trial court’s attention at trial. Specifically, Vega’s trial counsel proferred the same substantive testimony, as told to him by Carreon and Bernal, regarding Treviño’s alleged coaching of J.C.; Vega’s trial counsel moved for a mistrial based upon these allegations. The trial court then made the following observation and ruling:
. . . . I was looking and I didn’t notice—notice this, . . . truthfully. I saw the witness sitting there. If there was a nodding of the head, it was not an overt—obvious overt and obvious coaching of the witness.
If you’ll notify me if she is here again, I’ll instruct the bailiff to have her move so that she doesn’t face the witness, but I’ll accept your—that would be the testimony and the proffer . . . .
4 Due to this affiant’s age (12), we will identify him only by his initials.
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But even if, assuming what you are saying is correct, that that’s what they would say, the Motion for Mistrial is denied.
Because the issue of witness-coaching was already brought to the trial court’s attention during trial and preserved through the trial court’s ruling on Vega’s motion for mistrial, we conclude that this matter is determinable from the record and was sufficiently addressed by the trial court. Accordingly, the trial court did not abuse its discretion by denying a hearing on Vega’s motion for new trial based upon the Carreon and Bernal affidavits. See TEX. R. APP. P. 21.2 (noting that a motion for new trial is a prerequisite to presenting an issue on appeal only when necessary to adduce facts not in the record); Smith, 286 S.W.3d at 338.
The remaining two affidavits appear to attack J.C.’s credibility and character.
Padilla’s affidavit states that she is J.C.’s cousin and that even though J.C. is twelve years old, Padilla saw J.C. drink “a Jello shot at a party” and that she also saw a bottle of vodka inside J.C.’s bedroom. Padilla also stated that J.C. would “sneak out” of her house late at night and go to the neighbor’s house. Padilla further asserted that J.C. told her about a teenaged boy in the neighborhood named George that J.C. wanted to engage in sexual intercourse. Padilla further stated in her affidavit that J.C. told her that J.C.’s friends thought that she was pregnant. B.V., who is also related to J.C., asserted in his affidavit that one day when he and J.C. walked to a neighborhood store, she pointed to a house where a teenaged boy lived. According to B.V., J.C. stated that the boy told her that whenever she came to his house, J.C. was supposed to “bring condoms” with her.
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While the matters asserted in the Padilla and B.V. affidavits are not determinable from the record, in order to be entitled to a hearing on a motion for new trial, the defendant must establish the existence of reasonable grounds showing that the defendant could be entitled to relief. See id. at 339. After reviewing his motion for new trial and briefing on appeal, we do not see any arguments based upon the Padilla and B.V. affidavits that establishes the existence of reasonable grounds that would entitle Vega to a new trial. The Padilla and B.V. affidavits are attacks on complainant’s reputation, which is inadmissible under the rules of evidence. See TEX. R. EVID. 412. Therefore, we hold that the trial court did not abuse its discretion by denying a hearing on Vega’s motion for new trial based upon the Padilla and B.V. affidavits.
Vega’s first issue is overruled.
IV. BOLSTERING TESTIMONY By his fourth issue, Vega asserts that the trial court reversibly erred by allowing testimony which improperly bolstered J.C.’s testimony.
A. Standard of Review and Applicable Law A trial court’s decision on whether to admit evidence is reviewed under an abuse of discretion standard and will not be reversed if it is within the zone of reasonable disagreement. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011) (citations omitted). An abuse of discretion occurs when the trial court acts arbitrarily or unreasonably, without reference to guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc). The inquiry on appeal is whether the result was reached in an arbitrary or capricious manner. Id. We afford a trial court “great discretion” in its evidentiary decisions because “the trial court judge is in
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a superior position to evaluate the impact of the evidence.” Id. at 378–79. If we conclude that the trial court abused its discretion, we must then evaluate the error for harm. See TEX. R. APP. P. 44.2(b).
A direct opinion on the truthfulness of the child, from either a lay witness or an expert witness, is inadmissible. Cueva v. State, 339 S.W.3d 839, 867 (Tex. App.—Corpus Christi 2011, pet. ref’d) (citing Yount v. State, 872 S.W.2d 706, 708 (Tex. Crim. App. 1993) (en banc)); see Sessums v. State, 129 S.W.3d 242, 247 (Tex. App.—Texarkana 2004, pet. ref’d); Fisher v. State, 121 S.W.3d 38, 41–42 (Tex. App.—San Antonio 2003, pet. ref’d). This type of testimony is inadmissible “because it does more than assist the trier of fact to understand the evidence or to determine a fact in issue; it decides an issue for the jury.” Fisher, 121 S.W.3d at 41 (citing Yount, 872 S.W.2d at 709).
B. Discussion Vega specifically complains about the following line of questioning to Investigator Lopez related to J.C.’s Child Advocacy Center interview:
[Prosecutor]: Have you ever watched, I guess, a videotaped interview where you kind of get a feeling that maybe something else is going on, that the child is lying?
[Investigator Lopez]: Yes.
[Prosecutor]: That has happened to you before?
[Investigator Lopez]: Yes, sir.
[Prosecutor]: Why was this different?
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[Defense Counsel]: I am going to object, Your Honor, for a determination on whether if someone is lying.
It’s not a factual question.
The Court: This is an ultimate jury issue. It invades the province of the issue. The objection is sustained.
[Prosecutor]: Investigator, there was—there is a reason that you decided to file charges in this case; is that correct?
[Investigator Lopez]: That’s correct. [Prosecutor]: What were those reasons?
[Investigator Lopez]: One, we had the consistency of the preliminary report with the forensic interview, what was told to the sexual assault examiner who was the one that conducts the sexual assault exam at the hospital, because there is also a statement made to her. That was consistent with—throughout the investigation.
The—plus the physical findings that were found on the sexual assault examination.
[Prosecutor]: So, Investigator, I guess you kind of jumped ahead there. There was another exam that she had?
[Investigator Lopez]: Yes.
[Prosecutor]: Is that—that was the one at the hospital that we talked about [?]
[Investigator Lopez]: That was done at the hospital, correct.
[Prosecutor]: Do you know who was [sic] the person that conducted that exam?
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[Investigator Lopez]: Evonne Lopez [sic] is a forensic nurse at the Mission Hospital.
....
[Prosecutor]: And would there be times in your cases where you flag—not flag, but tell Evonne to double check her stories or anything like that?
[Defense Counsel]: I am going to object to the relevance, Your Honor.
The Court: It’s overruled. Overruled.
[Prosecutor]: In your experience would you ever have Evonne—
[Investigator Lopez]: The—the—I would express concerns that I had with the investigation to her but, ultimately she is the one that determines what she finds and then she has to give her opinion because, of course, she has to back up her opinion in court if it needs to come to court.
Whenever she had concerns, she would express that to me.
[Defense Counsel]: I am going to object to whatever another witness’s concerns are, Your Honor, and—and what the report is and her testimony.
The Court: Okay. Let’s move on here, Counsel.
....
[Prosecutor]: Did you have any concerns when you took her to get—when you took [J.C.] to get interviewed by Evonne.
[Investigator Lopez]: There weren’t concerns regarding her statement, no. I didn’t have any. She was pretty consistent throughout the interview so I didn’t have anything—have any concerns for double checking her statements or anything like that.
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[Prosecutor]: So you felt pretty confident taking her over there?
[Investigator Lopez]: Yes.
....
[Prosecutor]: What specific, I guess, checks do you have before you just arrest somebody off the street?
[Investigator Lopez]: We have to—whenever we are doing the investigation, one of the—one of the main things or one of the priorities in the case is what the child is stating.
When—and—and over the years you see how a child will give statements, how consistent they are. When they are talking, how they pause or what they think, or how they move their eyes, different body language.
And she was pretty thorough throughout. We didn’t see any—anything where we were concerned that she may be making things up, things of that nature.
When we spoke to her dad—because those are the ones that, you know, as parents they know what kind of child they have and so on and so forth. So we’ll talk to him, asked [sic] him about her behavior or things of that nature.
One thing that he specifically said was that she doesn’t lie. She wouldn’t make up something like that.
And I spoke to her after the interview just to confirm that everything that she said during the interview was—was true. And she pretty much said, yes, it is true. So it wasn’t—I am just—I don’t just take the forensic interview in [sic] itself.
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The State contends that Vega did not properly preserve error for appellate review.
We agree. As a general rule, the record must show that the complaint made on appeal was timely made to the trial court “with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context[.]” See Weeks v. State, 396 S.W.3d 737, 741 (quoting TEX. R. APP. P. 33.1).
Vega lodged three objections during the complained-of testimony. The first objection was based upon the complaint on appeal—that is, whether Investigator Lopez’s testimony invaded the province of the jury to determine issues of truthfulness and credibility. This objection was sustained by the trial court. Vega’s second objection was based on relevance grounds, and his third objection went to Investigator Lopez’s testimony about what Nurse Garza’s concerns were during her examination of J.C. Both of these objections were overruled. Vega also moved for a mistrial at the conclusion of the State’s case-in-chief:
[Defense Counsel]: I would make, Judge, also a Motion for Mistrial based on the fact that they have elicited from the investigator and they tried through the counselor and they tried again with the—with the—the nurse, they tried to elicit whether this young lady was telling the truth or not and they—I think they invaded the jury’s province that they determine the truth and it—
The Court: For future trials that’s grounds for a mistrial.
[Defense Counsel]: I know there is case law on it, Judge.
The Court: There is a case and I am familiar with the case.
But it’s grounds for mistrial for you to ask them that question. And the questions weren’t answered and you properly objected and I ruled and I’ll deny your Motion for Mistrial.
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Preservation of error is a systemic requirement of every appeal. Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009). Of the three relevant objections lodged in this case, only the first was on the basis asserted on appeal. Thus, after reviewing the record, we conclude that aside from Vega’s first objection, which was sustained by the trial court by not allowing any opinion testimony regarding J.C.’s credibility, no other error was preserved for any other portion of Investigator Lopez’s testimony now complained about on appeal. See TEX. R. APP. P. 33.1; Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“The point of error on appeal must comport with the objection made at trial.”) Vega’s fourth issue is overruled.
V. EXCLUSION OF TESTIMONY By his remaining two issues, Vega asserts that his Confrontation Clause and due process rights were violated when his counsel was prohibited from presenting a witness who would have testified about J.C.’s prior sexual knowledge.
A. Applicable Law and Standard of Review The right of a defendant to present witnesses in his behalf is not absolute, and is subject to “established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.” Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim. App. 1984) (en banc) (quoting Chambers v. Mississippi, 410 U.S. 284, 302 (1973). We review a trial court’s ruling on allowing a witness to testify for an abuse of discretion. See id.
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B. Discussion Vega sought to call Magda Karina Padilla as a witness at trial. In a hearing outside of the jury’s presence, Vega elicited the following relevant testimony from Padilla as an offer of proof:
[Defense Counsel]: Magda, [J.C.] had several discussions with you about sex.
[Padilla]: Yeah.
Q. What—and what—what did he [sic] ask?
A. Well, she asked me, once we were sitting in the front, and she told me she wanted to speak to me because I was the only girl like her age in there. And there is just boys so she would come to me.
So then there was this one night that I was sitting in the front porch and she told me that if she could talk to me. So then I put my phone down and she was telling me that there was this little kid named George that was like on—it’s our street, on the next street. She was telling me that he wanted like to have sex with her and that she didn’t know what to do.
And I told her, like, ma, you are like 11 years old. You are a little girl. That shouldn’t even like be—like you shouldn’t worry about that.
She is a little kid like—and I told her just stay away from him and that—because he—there is [sic] little kids, they do a lot of drugs there. So I told her like just keep away from that, that’s all he wanted, like for her not to get close to him and that was it.
Like after that she didn’t tell me anything else.
....
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The State objected that the testimony was inadmissible hearsay and in violation of rule of evidence 412. See TEX. R. EVID. 412 (Evidence of Previous Sexual Conduct in Criminal Cases). Vega responded by stating that the testimony is admissible “to refute the fact that [she] has never—doesn’t know what sex is, she is innocent.” Vega’s counsel further argued that Padilla’s testimony was for purposes of impeaching J.C.’s testimony. The trial court agreed with the State’s objections and did not allow Padilla to testify.
Vega argues on appeal that the trial court abused its discretion by ruling in the State’s favor on this issue because he was deprived of a “meaningful opportunity to present a complete defense.” We disagree. Vega’s right to call Padilla was not absolute and was subject to the rules of evidence. See Keller, 62 S.W.2d at 365. Here, the trial court did not abuse its discretion by sustaining the State’s hearsay and rule 412 objections because both applied to this case.
First, hearsay is not admissible. See TEX. R. EVID. 802. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See id. R. 801(d). Padilla’s proffered testimony primarily centered on what J.C. told her regarding a boy named George wanting to have sexual intercourse with her. The trial court properly concluded that this amounted to hearsay and was thereby inadmissible.
Second, rule 412 states that reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime at all, and evidence of specific instances of an alleged victim’s past sexual behavior is not admissible absent exceptions to the specific instances of conduct as outlined by the rule. See id. R. 412. Padilla’s
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proffered testimony falls into the category of testimony that rule 412 seeks to prevent, and no articulated exception to the admissibility of specific instances was argued by Vega. See id. at R. 412(B); see also Montgomery v. State, 415 S.W.3d 580, 584 (Tex. App.—Amarillo 2013, pet. ref’d) (“Rule 412 strives to balance a defendant's right to defend himself against the need to protect victims from undue public humiliation and ridicule.”). Rather, Vega generally argued that he was denied an opportunity to present a complete defense. Accordingly, the trial court did not abuse its discretion by finding Padilla’s testimony inadmissible under rule 412, as well.
Vega’s fifth and six issues are overruled.
VI. CONCLUSION
We affirm the trial court’s judgment.
__________________________
GINA M. BENAVIDES,
Justice
Do not publish. TEX. R. APP. P. 47.2 (b).
Delivered and filed the 24th day of July, 2014.