Affirmed and Memorandum Opinion filed October 30, 2003.
In The
Fourteenth Court of Appeals
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NO. 14-02-00902-CR
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SAMUEL RAY FUENTES, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Cause No. 886,255
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M E M O R A N D U M O P I N I O N
Appellant entered a plea of not guilty to the offense of indecency with a child. After a jury trial, he was convicted and the jury assessed punishment at fifty years’ confinement in the Institutional Division of the Texas Department of Criminal Justice. In three issues, appellant contends (1) the trial court violated the Confrontation Clauses of the Texas and United States Constitutions in limiting the cross-examination of a State’s witness, Dr. Sheela Lahoti; and (2) he received ineffective assistance of counsel. We affirm.
Background
While living with the complainant’s mother, appellant repeatedly sexually abused complainant over a period of several months. On July 26, 2001, Detective James Johnson with the Harris County Sheriff’s Office received a report that the complainant had sexually abused a younger child. When questioned by his mother about this allegation, the complainant told her that appellant had repeatedly touched “his private parts.” The complainant was later taken to the Children’s Assessment Center where he was interviewed by Monique Gadson and given a physical examination by Dr. Sheela Lahoti.
At trial, Dr. Lahoti testified that the physical examination of the complainant was normal. She further testified that a normal examination is to be expected in a case where the allegation of abuse is touching or anal penetration because with anal penetration, there is seldom an outward manifestation of trauma. She also testified that some children who have been sexually abused may initiate sex with their peers at a very young age. On cross-examination, appellant attempted, through the use of hypothetical scenarios, to question the doctor regarding a child who initiated sex with a peer prior to the outcry of sexual abuse. The prosecutor objected to counsel’s hypotheticals because there was no evidence the complainant abused another child prior to being abused by appellant.
Appellant proffered a bill of exception in which he asked the following questions:
[Defense counsel]: My question is this: If testimony came out and I asked you this question where Child A is alleged to have molested Child B. Okay. Child A says or the evidence shows that it happened at a certain time approximately a year ahead of time. All right. A year, year and a half. Okay. Whatever the reasons, that’s when it’s said to have happened. Okay. Child B then says, “I’ve been sexually molested,” but the date that he gives for that child – that molestation happens before this could have happened. All right. This is alleged to have happened, I’m sorry, the first molestation of the Child A. All right. That’s not – that doesn’t fit your scenario, does it?
DR. LAHOTI: Well, actually I have to agree with exactly what the Judge said that it would make you worry whether this child had been abused before.
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[Defense counsel]: That might be, but this is the person that’s accused and he’s accused on a certain date or it’s alleged to have started on a certain date. Okay. And that date is before the child is alleged to have said he was molesting another child. Okay. It doesn’t fit your scenario, does it?
DR. LAHOTI: It makes me worry the child was abused before the date that he acted out. And I don’t know, I don’t have the specifics on the date that he acted out because I don’t know how clearly of a time frame that you can get that this child sexually acted out on another child. And I don’t, I just –
I mean, I don’t know how clearly you can get that type of time frame; but that’s not the question. The question is: I worry that he had been exposed to sexualized – sexual behavior or that he had been sexually abused before he acted out.
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[Defense counsel]: Let’s assume the child has been abused before he starts acting out. Okay. Would it also be something that you would see that the child would give a different name to the person that actually molested them? Is that something that you see in your course of years having worked in child abuse?
DR. LAHOTI: A little child perhaps, not a child who is 12, 13, 14. At this age they know who is who. If you’re talking about four-year-olds and they’re a little confused as to different people, yeah, that would be much more likely?
* * * * *
[Defense counsel]: But the last question, then: But it wouldn’t fit your normal scenario. If they don’t give another name and they say, “This is the person,” and that’s an impossible date, that doesn’t fit your normal scenario; does it?
DR. LAHOTI: Okay.
Confrontation Clause
In his first two issues, appellant contends the trial court violated the Confrontation Clauses of the state and federal constitutions by not allowing appellant to ask the above questions. The Sixth Amendment to the United States Constitution and article I, section 10 of the Texas Constitution guarantee the right of an accused in a criminal prosecution to be confronted with the witnesses against him.[1] Davis v. Alaska, 415 U.S. 308, 315 (1947); Knox v. State, 31 S.W.3d 700, 702 (Tex. App.—Houston [1st Dist.] 2000, no pet.). The right to confront one’s accuser necessarily includes the right to cross-examination. Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996).
We review the trial court’s decision to restrict cross-examination of a witness under an abuse of discretion standard. Cantu v. State, 939 S.W.2d 627, 635 (Tex. Crim. App. 1997); Chambers v. State, 866 S.W.2d 9, 27 (Tex. Crim. App. 1993). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court’s action; rather, it is a question of whether the court acted without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g). The mere fact a trial court may decide a matter within its discretionary authority differently than an appellate court, does not demonstrate such an abuse. Id. We will not reverse a trial court’s evidentiary ruling on the admission of evidence unless that ruling falls outside the zone of reasonable disagreement. See id.
The constitutional right of confrontation is violated when appropriate cross-examination is limited. See Hurd v. State, 725 S.W.2d 249, 252 (Tex. Crim. App. 1987). The trial court may, however, limit cross-examination to prevent confusion of the issues and introduction of cumulative or collateral evidence. Lagrone v. State, 942 S.W.2d 602, 613 (Tex. Crim. App. 1997). Subject to these limitations and the broad discretion of the trial court to preclude repetitive and unduly harassing interrogation, a defendant is entitled to pursue all avenues of cross-examination reasonably calculated to expose a motive, bias, or interest for the witness to testify. Lewis v. State, 815 S.W.2d 560, 565 (Tex. Crim. App. 1991). A defendant proves a violation of the Confrontation Clause by showing he was prohibited from engaging in otherwise appropriate cross-examination designed to show bias on the part of the witness, and to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness. Olden v. Kentucky, 488 U.S. 227, 231 (1988).
Here, appellant contends the trial court improperly limited cross-examination by not allowing him to ask Dr. Lahoti about the timing of the alleged sexual abuse by the complainant and whether an abused child would give a different name to his abuser. Neither question was designed to show Dr. Lahoti was not a reliable witness, nor that she was biased against appellant. With regard to the timing of the alleged sexual abuse of the younger child by the complainant, there was no direct evidence when such abuse occurred, if it occurred. Appellant’s cross-examination on that issue did not tend to expose any bias or unreliability on the part of Dr. Lahoti. Furthermore, the trial court did not err in limiting the cross-examination because the hypothetical questions would lead to confusion of the issues. The defense presented various hypothetical situations to Dr. Lahoti, probing her expertise on child sexual abuse. Continued questioning about the timing of an alleged molestation of another child by the victim would confuse the jury about the circumstances of appellant’s alleged abuse of complainant. Sustaining the State’s objection to the hypothetical question was reasonable to avoid confusion, because if or when the younger child was molested did not tend to make appellant’s guilt or innocence more or less probable under the facts of this case. It was a reasonable limitation of the cross-examination, within the zone of reasonable disagreement, and therefore fell within the trial court’s discretion.
In addition, the excluded question and answer also went to a collateral matter, an unrelated and unsubstantiated allegation of sexual assault. Generally, a party cannot impeach a witness on a collateral matter. See Norrid v. State, 925 S.W.2d 342, 347 (Tex. App.—Fort Worth 1996, no pet.). A matter is collateral when the cross-examining party would not be entitled to prove it as a part of his case tending to establish his plea. See Ramirez v. State, 802 S.W.2d 674, 675 (Tex. Crim. App. 1990). Cross-examination of Dr. Lahoti regarding a hypothetical question founded on assumptions of whether, and when, abuse of another child occurred is irrelevant to the issue of whether appellant committed the offense in this case, because it would not have produced evidence of appellant’s innocence on the charged offense. The issue of whether another event other than appellant’s abuse of complainant may have caused the alleged acting out on a younger child, before appellant lived with complainant, was not germane to the crime charged. The allegation of the other incident provided an explanation to the jury for complainant’s delayed outcry and possibly a reason why appellant became a suspect in Detective Johnson’s investigation, but ultimately, the excluded evidence involved a collateral issue.
Finally, with regard to whether an abused child would give a different name to his abuser, appellant never raised the issue at trial. Therefore, appellant failed to preserve error with regard to that issue. See Richards v. Comm’n for Lawyer Discipline, 35 S.W.3d 243, 252 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (holding that party must attempt during the evidentiary portion of the trial to introduce the evidence and obtain a ruling from the trial court to preserve error). Further, appellant’s question regarding a child wrongly identifying his abuser did not go to show Dr. Lahoti’s bias or unreliability and was another collateral matter irrelevant to the charged crime.
In sum, appellant failed to show his rights under the Confrontation Clause were violated because the testimony he sought to elicit did not reflect a bias, prejudice, or ulterior motive on the part of Dr. Lahoti. Furthermore, the hypothetical question was collateral evidence that could easily confuse the issue at trial—the sexual assault of the complainant. Appellant’s first and second issues are overruled.
Ineffective Assistance of Counsel
In his third issue, appellant contends he received ineffective assistance of counsel in that his trial counsel failed to object to (1) hearsay statements made by Detective Johnson pertaining to the alleged abuse of the younger child; and (2) factual objections made by the State.
To succeed on his complaint, appellant must demonstrate both objectively deficient performance by his attorney and a reasonable probability of prejudice. See Strickland v. Washington, 466 U.S. 668, 694 (1984). In analyzing the assistance of counsel, we begin with the strong presumption that counsel was competent. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel’s actions and decisions were reasonably professional and were motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant bears the burden of rebutting this presumption by presenting evidence illustrating that trial counsel acted adversely to sound trial strategy. Id. Because an ineffectiveness claim must be firmly founded in the record, appellant cannot meet this burden if the record does not specifically focus on the reasons for the conduct of trial counsel. Thompson, 9 S.W.3d at 813. Generally, counsel should be given the opportunity to explain his actions before being condemned as unprofessional and incompetent. Bone v. State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002).
Appellant first contends there was no direct evidence that the complainant abused a younger child; therefore, Detective Johnson’s testimony about the abuse report was inadmissible hearsay and his counsel was ineffective in failing to object. Second, appellant contends that the State made “factual” objections instead of “legal” objections and his counsel was ineffective in failing to object to the State’s objections. The record before us is silent regarding why counsel failed to object to Detective Johnson’s testimony or the State’s objections. No motion for new trial was filed, nor was counsel given the opportunity to explain himself. Whether to object to evidence is a matter of trial strategy. Henderson v. State, 704 S.W.2d 536, 538 (Tex. App.—Houston [14th Dist.] 1986, pet. ref’d) (“[f]ailing to object to every introduction of improper evidence or questioning does not indicate that appellant’s representation was ineffective. Not objecting can be a trial strategy.”) From this trial record, one could conclude there were legitimate and professionally sound reasons for counsel’s conduct. Given the presumption of effectiveness and the great deference we give to counsel’s decisions, we find nothing in this record that would compel us to find counsel ineffective. See Johnson v. State, 68 S.W.3d 644, 655 (Tex. Crim. App. 2002). This is not one of those rare cases in which the evidence overcame the presumption that counsel’s inaction was part of a strategic plan. See Tong v. State, 25 S.W.3d 707, 713 (Tex. Crim. App. 2000). Appellant’s third issue is overruled.
The judgment of the trial court is affirmed.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed October 30, 2003.
Panel consists of Justices Anderson, Seymore, and Guzman.
Do Not Publish — Tex. R. App. P. 47.2(b).
[1] Article I, section 10 is worded differently than the Sixth Amendment and arguably allows more protection to an accused than does the United States Constitution. Long v. State, 742 S.W.2d 302, 309 & n.9 (Tex. Crim. App. 1987), overruled on other grounds, Briggs v. State, 789 S.W.2d 918, 924 (Tex. Crim. App. 1990). Texas case law, however, generally interprets Confrontation Clause values in much the same way as do the federal cases. Jonathon S. Miller, Comment, Does the Child Witness Videotape Statute Violate the Confrontation Clause?: Article 38.071, Texas Code of Criminal Procedure, 17 Tex. Tech L. Rev. 1669, 1681 (1986). Therefore, for purposes of this opinion, we do not construe the Texas Constitution as providing an accused a greater right of confrontation than does the Sixth Amendment.