Garza v. State

• Decision Date: 06 April 2000
• Parties: (Tex.App.-Fort Worth 2000) DIONICIO VEGA GARZA, APPELLANT V. THE STATE OF TEXAS, STATE NO. 2-97-573-CR
• Court: Texas Court of Appeals

Page 813

18 S.W.3d 813 (Tex.App.-Fort Worth 2000)

DIONICIO VEGA GARZA, APPELLANT

V.

THE STATE OF TEXAS, STATE

NO. 2-97-573-CR

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

April 6, 2000

FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

PANEL B:LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.

OPINION ON REMAND

DIXON W. HOLMAN, JUSTICE

This case of aggravated sexual assault of a child comes to us on remand. On original submission, we considered Appellant Dionicio Vega Garza's first point and, relying on Davis v. State, 782 S.W.2d 211, 214 (Tex. Crim. App. 1989), cert. denied, 495 U.S. 940 (1990), held that a request for a jury shuffle must be made before the movant reviews juror information cards or biographical questionnaires. Accordingly, we ordered that Appellant's conviction be reversed and that the case be remanded for a new trial. See Garza v. State, 988 S.W.2d 352, 358 (Tex. App.-Fort Worth), rev'd, 7 S.W.3d 164 (Tex. Crim. App. 1999). The Court of Criminal Appeals reversed our holding and instructed us to consider Appellant's remaining points. See Garza v. State, 7 S.W.3d 164, 166 (Tex. Crim. App. 1999). After carefully reviewing each of those points, we affirm the trial court's judgment.

I. BACKGROUND

CQ and her mother Susan lived together in a trailer home. Susan began dating Appellant during the summer of 1994. One afternoon, Susan went to the store to buy some cigarettes and left CQ and Appellant alone together. While Susan was away, Appellant sexually assaulted CQ by rubbing his penis against her and by penetrating her female sexual organ. CQ was seven years old at the time.

II. POINTS ON APPEAL

In his second point¹, Appellant complains that, during voir dire, the State improperly questioned prospective jurors by attempting to bind them to a specific set of facts. In point three, he insists that he was improperly restricted from asking CQ in court whether she had ever accused another person of committing the offense Appellant was charged with. Appellant also complains that he was not allowed to impeach a State's witness by questioning her about a prior inconsistent statement. The fourth point contends that the trial court erred by sustaining the State's objection when Appellant tried to ask about other suspects. Fifth, Appellant asserts it was error to exclude a document from evidence that a State's witness had used in preparation for her testimony. In point six, Appellant questions the court's refusal to let him impeach CQ's credibility. Appellant argues in point seven that the trial court should not have allowed the State to impeach him with his prior inconsistent statementsmade to a Child Protective Services ("CPS") employee. In point eight, Appellant argues that the court should have instructed the jury to find whether his statements to the CPS worker were voluntary. Last, Appellant claims that during closing argument the prosecutor improperly commented on Appellant's failure to present a witness who could contradict CQ's testimony.

A. QUESTIONING DURING VOIR DIRE

As a general rule, a trial judge is afforded broad discretion in conducting and controlling the voir dire proceeding. See Shipley v. State, 790 S.W.2d 604, 608 (Tex. Crim. App. 1990) (op. on reh'g). Although it is permissible for a court to restrict voir dire in certain situations,² the decision to limit voir dire is reviewed by ascertaining whether the trial court abused its discretion in limiting the questioning. See Allridge v. State, 762 S.W.2d 146, 163 (Tex. Crim. App. 1988), cert. denied, 489 U.S. 1040 (1989).

In voir dire, a proper question seeks to discover a juror's views on an issue that is applicable to the case at bar. See Shipley, 790 S.W.2d at 609. Questions seeking to elicit bias³ or prejudice⁴ from prospective jurors are proper. See Maddux v. State, 862 S.W.2d 590, 592 (Tex. Crim. App. 1993); Osoria v. State, 994 S.W.2d 249, 253-54 (Tex. App.-Houston [14th Dist.] 1999, pet. ref'd). Improper questions include those that ask potential jurors to reach conclusions based on "hypothetical facts" that mirror the case. See White v. State, 629 S.W.2d 701, 706 (Tex. Crim. App. 1981), cert. denied, 456 U.S. 938 (1982). Discretion is abused when a proper question about a proper area of inquiry is prohibited. See Allridge, 762 S.W.2d at 163; Dutton v. State, 874 S.W.2d 206, 207 (Tex. App.-Houston [14th Dist.] 1994, pet. ref'd). When a trial court limits a litigant's use of proper questions, the trial court prevents the party from making an intelligent decision regarding the use of peremptory challenges. See Shipley, 790 S.W.2d at 609; Allridge, 762 S.W.2d at 163.⁵

Appellant objected that the following portion of the prosecutor's voir dire was an impermissible attempt by the State to bind the veniremember to a specific set of facts:

One last thing, medical testimony. The State is not required to bring any medical testimony. Okay? Let me ask Ms. Bridges. Would you require the State to bring you any medical evidence?

Although a party may not bind a juror to a specific set of facts, see White, 629 S.W.2d at 706, a prosecutor is entitled to ask a prospective juror whether he or she will require evidence the law does not require for a verdict of guilty. See Robinson v. State, 985 S.W.2d 584, 587-88 (Tex. App.-Texarkana 1998, pet. ref'd). A conviction for sexual assault may be affirmed absent any medical evidence and solely on the testimony of the victim. See Rodriguez v. State, 819 S.W.2d 871, 873-74 (Tex. Crim. App. 1991); Ruiz v. State, 891 S.W.2d 302, 304 (Tex. App.-San Antonio 1994, pet. ref'd); Knabe v. State, 836 S.W.2d 837, 839 (Tex. App.-Fort Worth 1992, pet. ref'd). We conclude that the trial court did not abuse its discretion by overruling Appellant's objection to the prosecutor's questions of juror Bridges.

Appellant also challenges the following portion of the prosecutor's voir dire that attempted to learn whether any of the veniremembers would have a problem believing a child witness. Appellant asserts that the statements and questions improperly committed the venire to a specific set of facts:

Our Constitution says -- both the Texas Constitution and the Federal Constitution -- that a defendant has an absolute right to face their accuser whether they are three or they are 93. Okay? So, you know, more likely than not you will hear from a child. Okay? So now my questions are kind of going along the lines of -- what we are trying to do, both the State and the Defense, are trying to get fair and impartial individuals that don't have preconceived notions.

And maybe because of someone's life experience, because they have children or they don't have children, they think, you know what, any kid, any child, if their head isn't above this railing when they walk in here, I am not going to believe a word they say. Is there anybody that feels that way?

Or maybe just because they are a child, a little person, under this height, that you know what, if you bring somebody in shorter than this -- let's say a particular age, or under seven, under seven, I'm sorry, I can't believe them.

Nevertheless, those inquiries by the prosecutor were proper for the purpose of learning whether any veniremember had bias⁶ or prejudice⁷ against a child's testimony. The testimony of a child victim by itself is sufficient to support a conviction for sexual assault, see Ruiz, 891 S.W.2d at 304, and a potential juror who could not believe a witness simply for the fact of being a child would properly be excused for cause. See Davis v. State, 894 S.W.2d 471, 474 (Tex. App.-Fort Worth 1995, no pet.); see also Perez v. State, 960 S.W.2d 84, 88 (Tex. App.-Austin 1997, no pet.). Those inquiries by the prosecutor did not attempt to bind the venire to a specific set of facts, and we overrule Appellant's second point.

B. RIGHT OF CONFRONTATION AND IMPEACHMENT OF WITNESSES

The Sixth Amendment insures that in "all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. Implicit within this right, as applied to the states via the Fourteenth Amendment, is the defendant's right of cross-examination. See Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974). However, this right is not absolute and can be denied where the evidence bears an indicia of reliability to protect the integrity of the fact-finding process. See Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S. Ct. 2308, 2313 (1972); Porter v. State, 578 S.W.2d 742, 745 (Tex. Crim. App. 1979). Consequently, a trial court's broad discretion to limit the extent of cross-examination requires the trial judge to carefully weigh the probative value of the evidence against the potential risks of prejudicing a party unfairly, embarrassing or harassing a witness, misleading or confusing the jury, and delaying or wasting time needlessly. See Hoyos v. State, 951 S.W.2d 503, 506 (Tex. App.-Houston [14th Dist.] 1997), aff'd, 982 S.W.2d 419 (1998).

1. Right to Cross-Examine CQ

Appellant insists that the trial court abused its discretion by denying his Sixth Amendment right to confront CQ by asking her whether she had ever claimed that someone other than Appellant had sexually abused her. Appellant questioned CQ about this matter out of the jury's presence and CQ testified that Appellant was the only person she had accused of molesting her. She also swore that she did not think she had ever stated otherwise. Appellant neither elicited any controverting testimony from any witness nor established that CQ had accused any other person.

Before a witness may be impeached with a prior inconsistent statement, the party offering the impeaching testimony must establish that the prior statement was made by the witness whom the party is now trying to impeach. See TEX. R. EVID. 613; Bigby v. State, 892 S.W.2d 864, 886 (...