Hernandez v. State
| Decision Date | 30 December 2014 |
| Docket Number | NO. 03-13-00186-CR,03-13-00186-CR |
| Parties | Ernesto Alexander Hernandez, Appellant v. The State of Texas, Appellee |
| Court | Court of Appeals of Texas |
NO. 14907, THE HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING
A jury found appellant Ernesto Alexander Hernandez guilty of continuous sexual abuse of a young child for sexually abusing his stepdaughter, E.H.1 See Tex. Penal Code § 21.02(b), (c)(4). The trial court assessed appellant's punishment at confinement for 35 years in the Texas Department of Criminal Justice. See id. § 21.02(h). In four points of error on appeal, appellant complains about the trial court's evidentiary rulings excluding defense evidence and admitting evidence of his oral statements. Finding no reversible error, we affirm the trial court's judgment of conviction.
DISCUSSION
Exclusion of Evidence
The defense strategy at trial was to attack E.H.'s credibility by showing that she had "deeply embedded 'rage and anger' directed toward appellant." According to the defense theory, "this rage and anger constituted a motive of bias" that "became manifest in the form of sexual allegations made against [appellant]." Appellant's first two points of error relate to the trial court's exclusion of evidence offered to support this defense, complaining that the exclusion of the evidence violated his Sixth Amendment rights to confrontation and effective assistance of counsel.
Alleged Threat Incident
As evidence showing E.H.'s "rage and anger," appellant sought to question E.H. about "[getting] into trouble at school," attempting to elicit information about an alleged incident documented in a CPS report. Apparently, a teacher reported to the CPS investigator that E.H. might have threatened to kill another child at school. Appellant maintained that this evidence was "very pertinent to rage and anger, and pertinent to bias." He also indicated that evidence of this threat was "germane and relevant" "to impeach [E.H.] who's come across physically in misdemeanor [sic] today on the stand as just kind of polite, shy, quiet." The State objected on multiple grounds including that the evidence involved multiple layers of hearsay, that it was a specific instance of conduct not relevant to the allegations of sexual abuse, that it was inadmissible character-conformity evidence under Rule 404(b), and that the prejudicial effect substantially outweighed any probative value under Rule 403. The trial court excluded the evidence, finding that it was inadmissible character-conformity evidence not fitting within any of the exceptions of Rule 404(b), that it was notrelevant, and that any probative value was substantially outweighed by unfair prejudice. Following a subsequent offer of proof (during which E.H. denied ever making such a threat), appellant reasserted "those arguments . . . that relate to the admissibility of the proffer from E.H. regarding trouble at school." The court reiterated its ruling excluding the evidence of the alleged threat incident "for the previous reasons that the Court's already stated on the record." In his first point of error, appellant contends the trial court erred by refusing to allow him to question E.H. about this alleged incident.
Preservation of error is a systemic requirement on appeal. Blackshear v. State, 385 S.W.3d 589, 590 (Tex. Crim. App. 2012); Boston v. State, 373 S.W.3d 832, 841 (Tex. App.—Austin 2012), aff'd, 410 S.W.3d 321 (Tex. Crim. App. 2013). A reviewing court should not address the merits of an issue that has not been preserved for appeal. Blackshear, 385 S.W.3d at 590; Wilson v. State, 311 S.W.3d 452, 473-74 (Tex. Crim. App. 2010); Boston, 373 S.W.3d at 841. An appellate issue involving a proffer of evidence, as opposed to an objection, must still satisfy the preservation-of-error requirements. Reyna v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (). To preserve a complaint regarding the exclusion of evidence, a party must not only tell the judge that the evidence is admissible, but must also explain why it is admissible. Id. at 177-79. Further, the explanation given at trial must match the one urged on appeal. Id. at 179.
Appellant asserts that the exclusion of the evidence of the alleged threat incident violated his Sixth Amendment rights to confrontation and effective assistance of counsel. However, when the trial court prohibited appellant from questioning E.H. about the alleged threat incident, appellant neither objected to the exclusion of the evidence on the ground, nor offered the evidence on the basis, that either his constitutional right to confrontation or his constitutional right to effective assistance of counsel were compromised by the exclusion of the evidence. Even constitutional rights may be waived if the proper request, objection, or motion is not asserted in the trial court. See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014). Because appellant did not articulate that his right to confrontation or his right to effective assistance of counsel supported the admission of the evidence about the alleged threat incident, the trial court never had the opportunity to rule on this rationale. Accordingly, appellant did not preserve his complaint that the exclusion of this evidence violated these constitutional rights. See Cerda v. State, No. 03-12-00582-CR, 2014 WL 4179359, at *6 () (mem. op., not designated for publication). We overrule appellant's first point of error.
Outcry of Sexual Abuse by J.S.
As further evidence of E.H.'s "rage and anger," appellant offered evidence of E.H.'s outcry of sexual abuse perpetrated against her by a juvenile family member, J.S.2 Appellant sought to elicit the details of this outcry during his cross-examination of E.H., and to cross-examine Dr. William Carter, the State's psychological expert, about the "manipulative nature" of a child whomakes multiple outcries disclosing sexual abuse by multiple perpetrators.3 In his second point of error, appellant argues that the trial judge erred in excluding evidence of E.H.'s outcry.
At trial, appellant sought to question E.H. about her outcry to a CPS investigator that a juvenile family member, J.S., sexually abused her during the same time frame that she said that appellant sexually abused her, generally perpetrating the same type of sexual acts.4 After the offer of proof, appellant argued that the evidence of E.H.'s outcry was admissible because there is "no greater bias than saying that common members of a family . . . perpetrate, basically, the same sexual acts against an eight year old" asserting it was "improbable." The State objected under Rule of Evidence 412 and additionally argued that the prejudicial effect substantially outweighed any probative value under Rule 403. The trial court sustained the State's objections, concluding that the evidence was inadmissible under Rule 412 because it was "too far removed . . . as relates to motive or bias" and that the danger of unfair prejudice substantially outweighed any value under Rule 403.
Appellant also sought to cross-examine the State's psychological expert, Dr. William Carter, about E.H.'s outcry of J.S.'s sexual abuse. He asserted that The State objected toappellant "present[ing] a second outcry as a known lie," when "there was an ongoing criminal investigation regarding [the] juvenile perpetrator." Appellant responded by averring that he did not believe he was required to prove that the outcry was a false accusation. He maintained that because "the subject of [the outcry] is it's occurred at the same time that this other abuse allegedly was perpetrated on . . . they're all inextricably linked . . . as they go to that manipulative nature." He complained that he would be "denied his constitutional right to cross-examination and denied effective defense" if he was unable to "bring that to the jury's attention." The trial court sustained the State's objection finding that the evidence was inadmissible under Rule 412 and, further, that the unfair prejudice "far, far outweigh[ed]" any probative value.
On appeal, appellant maintains that the exclusion of the evidence of E.H.'s outcry violated his constitutional right of confrontation and right to effective assistance of counsel. As previously noted, however, preservation of error regarding the exclusion of evidence is a systemic requirement on appeal, Blackshear, 385 S.W.3d at 590; Reyna, 168 S.W.3d at 177-79, and the explanation given at trial must match the one urged on appeal, Reyna, 168 S.W.3d at 179. Here, when the trial court excluded evidence concerning E.H.'s outcry of J.S.'s sexual abuse, appellant neither objected to the exclusion of the evidence on the ground, nor offered the evidence on the basis, that his constitutional right to effective assistance of counsel was compromised by the exclusion of the evidence. Thus, appellant did not preserve his complaint that the exclusion of this evidence violated this constitutional right. See Yazdchi, 428 S.W.3d at 844 (). Accordingly, we address onlyappellant's complaint that the trial court's exclusion of this evidence violated his constitutional right of confrontation.
We review a trial court's ruling on the admission or exclusion of evidence under an abuse of discretion standard. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 201...
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