Chavez v. State

1

Carlos Chavez, Appellant v. The State of Texas

No. 02-22-00090-CR

Court of Appeals of Texas, Second District, Fort Worth

November 9, 2023

Do Not Publish Tex.R.App.P. 47.2(b)

On Appeal from the 462nd District Court Denton County, Texas Trial Court No. F22-717-462

Before Birdwell, Bassel, and Walker, JJ.

MEMORANDUM OPINION

WADE BIRDWELL JUSTICE

Appellant Carlos Chavez appeals his conviction for continuous sexual abuse of a young child and indecency with a child. See Tex. Penal Code Ann. §§ 21.02, 21.11. In two issues, Chavez argues that the trial court reversibly erred by (1) violating his Sixth Amendment right to confrontation in refusing to admit evidence that the complainants' mother^[1] applied for a U-Visa^[2] "shortly after" the complainants' outcries and (2) admitting hearsay that did not fall under the outcry statute's exception. Because we conclude that the trial court did not violate Chavez's Sixth Amendment right and that the trial court did not err by allowing the complained-of testimony, we affirm the trial court's judgment of conviction.

I. Background^[3]

On September 7, 2020, fourteen-year-old Shelly told Mother that Chavez had sexually abused her by touching her vagina with both his penis and his hands. Mother and Shelly reported the abuse to the police that day. During a forensic interview Shelly described additional acts of sexual abuse, including Chavez's inserting his fingers into her vagina, licking her vagina, touching her breasts, forcing her to touch his penis, and touching her vagina with his penis. Following the forensic interview, Shelly was examined by a sexual assault nurse examiner (SANE), to whom Shelly described a similar pattern of sexual abuse that had occurred over a period of years.

As part of the investigation into the allegations that Chavez had sexually assaulted Shelly, the forensic interviewer also spoke with seventeen-year-old Tonya, who did not initially disclose that she had been sexually abused by Chavez. However, sometime in October 2020, Tonya told Mother that Chavez had once touched Tonya's vagina, but she kicked him away. After this disclosure, Tonya was examined by a forensic interviewer and by a SANE. During both her second forensic interview and the SANE exam, Tonya described additional acts of sexual abuse and detailed where the acts had occurred, what she had been wearing, and how Chavez had touched her.

Chavez was indicted on one count of continuous sexual abuse of a child, namely Shelly, and one count of indecency with a child, namely Tonya. At Chavez's jury trial, Shelly Tonya, Mother, the forensic interviewer, and the SANEs testified about Chavez's acts of sexual abuse. The jury found him guilty of both counts and set his punishment at forty-five years' confinement on Shelly's case and ten years' confinement on Tonya's case. The trial court entered judgment on the jury's verdict and ordered the sentences to run consecutively. This appeal followed.

II. Sixth Amendment Right to Confrontation

In his first issue, Chavez contends that, by refusing to admit evidence that Mother had applied for a U-Visa shortly after the complainants' outcries, the trial court violated Chavez's Sixth Amendment right to confrontation. In response, the State argues that the trial court was within its discretion to limit cross-examination and exclude the testimony because the excluded testimony was not relevant, but even if the trial court did err by excluding the testimony, the error was harmless beyond a reasonable doubt.

A. Standard of Review

We review a trial court's exclusion of topics from cross-examination for an abuse of discretion, recognizing that a trial judge retains wide latitude to impose reasonable limits on cross-examination. Arnold v. State, No. 02-18-00022-CR, 2019 WL 165995, at *4 (Tex. App.-Fort Worth Jan. 10, 2019, pet. ref'd) (mem. op., not designated for publication) (citing Johnson v. State (Thaxton D. Johnson), 433 S.W.3d 546, 555 (Tex. Crim. App. 2014)).

A trial court abuses its discretion when its decision "falls outside the zone of reasonable disagreement." Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016). We will not reverse the trial court's decision to exclude evidence unless the ruling "was so clearly wrong as to lie outside the zone within which reasonable people might disagree." Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008)). Nor will we reverse a ruling that is "correct under any applicable theory of law." Johnson v. State (Joe Dale Johnson), 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

B. Applicable Law

The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The main purpose of the Confrontation Clause is to secure for the opposing party the opportunity to cross-examine witnesses, as that is "the principal means by which the believability of a witness and the truth of his testimony are tested." Joe Dale Johnson, 490 S.W.3d at 909 (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110 (1974)).

As relevant in this case, a defendant's right to cross-examine a prosecution witness allows the defendant to attack the credibility of that witness or to establish the witness's bias or motive. See Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App. 2009) (citing Davis, 415 U.S. at 316, 94 S.Ct. at 1110). Indeed, "it is not within a trial court's discretion to prohibit a defendant from engaging in otherwise appropriate cross-examination" to show bias or motive on the part of that witness. Thaxton D. Johnson, 433 S.W.3d at 551 (internal quotation marks omitted) (quoting Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987)). However, "the right to cross-examine is not unqualified." Joe Dale Johnson, 490 S.W.3d at 909. A trial court may limit the scope and extent of cross-examination as long as such limitations do not infringe upon the Confrontation Clause's guarantee of "an opportunity for effective cross-examination." Id. (quoting Thaxton D. Johnson, 433 S.W.3d at 552). For example, the trial court may reasonably limit cross-examination "based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness'[s] safety, or interrogation that is repetitive or only marginally relevant." Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435 (1986)).

A trial court violates the Confrontation Clause when it "cut[s] off all questioning about an event that the State conceded had taken place and that a jury might reasonably have found furnished the witness a motive for favoring the prosecution in his testimony." Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435. But even in the context of the Confrontation Clause,

an appellant's ability to conceive a hypothetical justification for the questions that he wants to ask on cross-examination does not deprive the trial court of the discretion to restrict cross-examination. The trial court has many justifications that it can rely on to restrict cross- examination, and an appellant has no grounds to complain if he can still present a vital defense even with the restrictions in place.

Austin v. State, No. 02-18-00484-CR, 2019 WL 6205247, at *6 (Tex. App.-Fort Worth Nov. 21, 2019, pet. ref'd) (mem. op., not designated for publication). Indeed, "the scope of cross-examination is not unilaterally controlled by the defendant, and the trial court has the discretion to determine what level of examination will permit a defendant to muster the evidence needed to make a defensive argument." Id. at *9 (citing Faglie v. State, No. 03-17-00281-CR, 2019 WL 847812, at *4 (Tex. App.- Austin Feb. 22, 2019, pet. ref'd) (mem. op., not designated for publication)); see Van Arsdall, 475 U.S. at 679, 106 S.Ct. at 1435 (holding a defendant is entitled to only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish").

To be admissible-even in the face of a Confrontation Clause objection-the proffered testimony must still have some "causal" or "logical" connection to the alleged bias or motive. Thaxton D. Johnson, 433 S.W.3d at 552-53. The Court of Criminal Appeals has explained that the "causal connection" requirement "is ultimately rooted in the concept of relevance." Id. at 552. Thus, whether the proffered evidence is relevant is the first step in a trial court's decision to either admit or exclude the evidence:

Even though our rules "favor the admission of all logically relevant evidence for the jury's consideration," the trial court judge is still in charge of making the threshold decision as to whether evidence is relevant or not, and her decision will not be disturbed on appeal unless it is "clearly wrong."

Henley, 493 S.W.3d at 83 (footnotes omitted). The evidence must be both material and probative. Id.

In the context of a witness's credibility, relevance does not depend on whether the proffered evidence definitively proves the alleged bias. Thaxton D. Johnson, 433 S.W.3d at 552. Rather, "it need only 'make the existence' of bias 'more probable or less probable than it would be without the evidence.'" Id. (quoting Tex R. Evid. 401). But "a defendant who cannot persuasively establish [some causal] connection has essentially failed to demonstrate that the evidence he seeks to introduce . . . is relevant to prove the allegation of bias." Id. (citing Carpenter v. State, 979 S.W.2d 633, 635 (Tex. Crim. App. 1998)). For example, a witness who may "be on probation, have pending charges, be in the country illegally, or have...