Gerardo Trevizo v. State

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

GERARDO TREVIZO, §
No. 08-12-0063-CR
Appellant, §
Appeal from the
v. §
120th District Court
THE STATE OF TEXAS, §
of El Paso County, Texas
Appellee. §
(TC#20090D03033)
§

OPINION

Gerardo Trevizo appeals his conviction on one count of aggravated sexual assault,

TEX.PENAL CODE ANN. § 22.021, and one count of prohibited sexual conduct, TEX.PENAL CODE

ANN. § 25.02. The jury found Trevizo guilty on both counts and assessed punishment at 35 years’

for Count One and 10 years’ for Count Two in prison. On appeal, Trevizo brings three challenges

on evidentiary and constitutional grounds. In Issue One, Trevizo maintains that the admission of

a medical record containing inculpatory statements made by the victim to a nurse constituted

harmful evidentiary error and a violation of his rights under the Confrontation Clause. In Issue

Two, Trevizo contends the trial court abused its discretion by admitting extrinsic impeachment

evidence against a State witness under Rule 613 because the witness never unequivocally denied

making certain statements to a police officer. In Issue Three, Trevizo argues that the trial court
erred by allowing the same State witness to testify at all because the State had prior notice the

witness would be hostile, and it specifically sought to call the witness in order to admit

inadmissible evidence though improper impeachment. For the following reasons, we affirm.

STATEMENT OF FACTS

Prior to his arrest and conviction in this case, Appellant resided in a single-family home in

San Elizario, Texas, with his mother Ramona, his sister Rebecca Trevizo, his niece Alejandra

Trevizo,1 and Alejandra’s children. Rebecca is forty-one years’ old. At seven months of age,

Rebecca contracted encephalitis from a mosquito bite, rendering her epileptic and permanently

mentally disabled. Rebecca’s family members testified that Rebecca has the mental capacity of a

child between the ages of five and seven, and that she interacts with Alejandra’s children at their

same intellectual level. Rebecca speaks Spanish, but has some difficulty communicating and

often uses her own idiosyncratic words and phrases to describe certain things. As a result, family

members sometimes have to “translate” what she means when she speaks to people who do not

know her. Rebecca can perform some limited self-care functions, including bathing herself.

Rebecca still plays with “little dolls,” is unable to drive a car, is unable to make adult decisions,

and suffers from short-term memory loss. Ramona testified that prior to 2009, Rebecca had never

had sex, and that she did not understand what sex was. Ramona is Rebecca’s guardian and

primary caretaker. During her seizures, Rebecca sometimes loses continence, and that when that

happens, Ramona washes Rebecca’s clothes and tells Rebecca to take a shower. Ramona also has

to ensure that Rebecca does not injure herself during a seizure and provide Rebecca with oxygen to

ensure that she can breathe during an epileptic attack.

1
In her trial testimony, Alejandra stated that although Appellant was her uncle, she viewed him more as her brother.
As such, he was repeatedly referred to as her brother at trial. For purposes of clarity in the appellate record, we refer
to him as her uncle and to Alejandra as his niece.
2
 On May 5, 2009, Ramona and Alejandra went to pick up some items at the supermarket,

leaving Appellant to supervise Alejandra’s children as well as his sister Rebecca. When they

returned, Ramona and Alejandra found Alejandra’s children playing unsupervised in the living

room and went searching for Appellant. What happened after Ramona and Alejandra reached the

door of a back bedroom is in dispute. Ramona testified at trial that she could not recall what she

saw on May 5, 2009, nor could she remember what she had told El Paso County sheriff’s deputies

that day beyond giving them her name and some other identifying information. Over Appellant’s

objection, the trial court admitted a redacted version of the deputy’s report as State’s Exhibit 72

and issued a limiting instruction to the jury that it should only consider the statement for

impeachment purposes and not the truth of the matter asserted therein. Her statement to sheriff’s

deputies as relayed in the report reads as follows:

I then entered my bedroom and noticed the door was closed. I then opened
the door and saw my daughter, Rebecca Trevizo, lying on her back, on my
bed. She was pulling up her pants. I also saw my son, Gerardo Trevizo,
standing in front of her also pulling up his pants. . . . I spoke to Rebecca
and asked what happened and she told me Gerardo put his penis inside her.
I also found my daughter’s underwear wet in the area of her vagina. I then
told my daughter, Rebecca to shower due to the wet spot on her underwear.
I believe Gerardo sexually assaulted my daughter Rebecca and wish to file
charge.

At trial, Alejandra testified that when she got to the back bedroom, she only saw Appellant

exiting the room and nothing else. As with Ramona, she also initially denied any memory of

giving a statement inconsistent with her testimony to sheriff’s deputies. The prosecutor then read

from a statement Alejandra made to El Paso County sheriff’s deputies in which she claimed she

saw Appellant leaning over Rebecca, that Rebecca was in bed pulling up her underwear and pants,

and that Appellant buttoned up his pants as well. When confronted when the police report, she

3
vacillated before finally admitting that the statements she gave in the police report were the truth.

Inside the bedroom, Appellant’s mother and niece, Alejandra, confronted him and asked

him what was going on. Appellant maintained that Rebecca had urinated on herself during a

seizure, and that he was cleaning her up. Following a verbal altercation with his mother in which

he handed her a steak knife and told her to kill him if she thought he actually raped his sister,

Appellant called 911. Two deputies from the El Paso County Sheriff’s Office arrived on the

scene and interviewed all the family members. One of the deputies escorted Rebecca and

Alejandra to Sierra Medical Center in El Paso. There, Sexual Assault Nurse Examiner (“SANE”)

Kathleen Justice performed a sexual assault examination and interviewed Rebecca through a

telephonic translation service provided by AT&T that Sierra Medical Center uses to assist

employees who do not speak Spanish. The translator, identified only by a four-digit number,

relayed information over speakerphone between Rebecca and Justice, with Alejandra providing

clarification when Rebecca used idiosyncratic words unfamiliar to the translator.

Justice, who was admitted as a sexual assault examination expert without objection at trial,

testified that she obtained a DNA sample from Rebecca, performed a vaginal swab, and observed

abrasions and redness around Rebecca’s vaginal area. During the course of the exam, Rebecca

made statements identifying Appellant as the man who sexually assaulted her. Specifically,

Justice included the following statements in her notes:

5/5/09 2100 AT&T Operator #9019 Patient states that police brought
her here when asked why she is here, Patient state that ‘he was on top of
her.’ When asked who ‘he’ is she says ‘Gerardo’ her brother. Per sister,
Rebecca’s name for a man’s member is ‘talega.’ When asked what he did
with it she said ‘he inserted it.’ . . . Patient says this is the first time that
he has done this. He said, ‘Come here, Rebecca.’ Then patient says he
put his penis inside of her. When asked if this hurt, Rebecca said ‘yes.’
Then sister said he, Gerardo, called the police. Then she came here. K

4
 Justice RN SANE

When the State moved to enter the medical records from that exam into evidence while

Alejandra was on the stand, Appellant objected to the admission of the inculpatory statements on

the basis that they were double hearsay and violated the Confrontation Clause. Following brief

argument, the trial court held that the statements fell within the medical diagnosis exception to

hearsay. The trial court also found that although the statements were testimonial in nature,

Appellant’s Crawford rights2 were not violated because Rebecca was present in the courtroom

and available for Appellant’s cross-examination should he so elect to call her.3 Appellant argued

that Rebecca’s mental condition rendered her “unavailable” for Crawford purposes, but the trial

court overruled Appellant’s objection. The trial court then admitted the medical records into

evidence.

Separately, a detective from the sheriff’s department obtained a search warrant and also

took Appellant to Sierra Medical Center, where a technician collected an exemplar DNA sample

from Appellant and performed several swabs on Appellant’s penis. Additionally, sheriff’s

deputies seized a white t-shirt and a pair of plaid boxer shorts from the home and submitted them

for forensic testing. At trial, the State’s DNA analysis expert from the Texas Department of

Public Safety crime lab testified that a penile swab from Appellant yielded DNA from both

Appellant and Rebecca, and that both Appellant and Rebecca’s DNA were found in epithelial cells

collected from the plaid boxer shorts.

At the close of the State’s case, Appellant moved for a mistrial based on the admission of

the police report containing Ramona’s prior inconsistent statements. The trial court denied the

2
Crawford v. Washington, 541 U.S. 36, 126 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
3
The State did not call Rebecca during its case-in-chief.
5
motion. Appellant also moved for a directed verdict, which was denied. Appellant then rested

his case without offering any witnesses.

DISCUSSION
I.

In Issue One, Trevizo asserts that the trial judge abused her discretion when she admitted

portions of medical records in which Rebecca relayed information about the sexual assault to

Justice by way of a translator, arguing that the statements constituted inadmissible double hearsay.

Trevizo also argues that his confrontation rights were violated because Rebecca’s statements to

Justice were testimonial, the translator is unavailable for cross-examination because her identity is

unknown, and Rebecca is unavailable because by virtue of her mental disability, she is not a

competent witness.

The State advances a five-fold response. First, the State contends that Trevizo did not

properly preserve this issue for appellate review. Second, the State maintains that the third-party

Spanish-language translator should not be seen as a separate link in the hearsay chain, but instead

as merely a “language conduit” relaying information within a single level of hearsay (i.e. from

Rebecca to Justice). Third, the State argues that within that single level of hearsay, the statements

Rebecca made to Justice fell within a hearsay exception, since they were made for the purposes of

medical diagnosis or treatment. Fourth, the State asserts that Trevizo’s rights under the

Confrontation Clause were not violated because Rebecca was present at trial and because her

statements to Justice were relayed in the context of an ongoing emergency. Fifth, the State asserts

that any error was harmless beyond a reasonable doubt.

We review this issue first for preservation, second for evidentiary error, and third for

constitutional error, assessing harm where necessary.

6
 A. Preservation of Error

In its first rebuttal point, the State argues that Appellant failed to preserve the hearsay issue

for appellate review, given that he did not object to the medical record in its entirety or provide any

citation to the trial record showing he objected to the medical record in its entirety. The State also

contends that Appellant objected only to the hearsay chain involving Alejandra translating for

Rebecca at trial (i.e. from Rebecca to Alejandra to Justice). Because Appellant is challenging a

hearsay chain in which an unidentified third party served as translator (i.e. from Rebecca to AT&T

to Justice), the trial court had no opportunity to rule on that objection, and the variance between the

two hearsay chains is fatal to Appellant’s case.

To preserve an issue for appellate review, a party must offer a timely and sufficiently

specific objection to the evidence presented and obtain a ruling from the trial court. TEX.R.APP.P.

33.1; TEX.R.EVID. 103(a); see also Layton v. State, 280 S.W.3d 235, 239 (Tex.Crim.App. 2009).

“Identifying challenged evidence as hearsay or as calling for hearsay should be regarded by courts

at all levels as a sufficiently specific objection, except under the most unusual circumstances.”

Lankston v. State, 827 S.W.2d 907, 910 (Tex.Crim.App. 1992). In addition to timeliness and

specificity, the argument advanced on appeal must comport with the argument presented to the

trial judge or else the error is waived. Pena v. State, 285 S.W.3d 459, 464 (Tex.Crim.App. 2009).

In assessing whether any variance between the objection at trial and the argument presented for

review is fatal, “we consider the context in which the complaint was made and the parties’ shared

understanding at that time.” Id.

The State’s first argument on preservation is conclusory, and we dispose of it quickly.

The record clearly indicates that Appellant objected to two portions of the medical record that were

7
purportedly hearsay, even going so far as to read them aloud to the court. Appellant’s counsel

requested specific rulings on the hearsay and Crawford objections, which the trial court provided

and from which Appellant asked for reconsideration. That is enough to preserve the issue for our

review, and the State has offered no case law to the contrary. The State’s first argument is without

merit, and we disregard it. Likewise, the second argument is also flawed. The trial court

engaged in a lengthy legal analysis involving an alleged hearsay chain from Rebecca through a

translator to Justice. We find that is sufficient to present the issue before us for our review,

regardless of whether Alejandra or the AT&T translator played the role of the middle link in the

chain. Cf. Lankston, 827 S.W.2d at 910 (where hearsay objection rationale is clear from context,

appellate court may properly review the trial ruling on the merits). Appellant’s trial argument

was enough to put the State on notice of what legal argument it would need to present on appeal.

Error has been sufficiently preserved.

B. Hearsay

In his first major sub-point presented in Issue One, Appellant contends the trial court erred

by penetrating two levels of hearsay and admitting substantive inculpatory evidence without

having a basis in the Texas Rules of Evidence for doing so.

Standard of Review

We review evidentiary rulings, including those regarding the applicability of a hearsay

exception, for abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex.Crim.App. 2007);

Walters v. State, 247 S.W.3d 204, 218 (Tex.Crim.App. 2007). Likewise, we review rulings on

whether the presence of a translator created multiple levels of hearsay for abuse of discretion.

Saavedra v. State, 297 S.W.3d 342, 349 (Tex.Crim.App 2009). “A trial court abuses its

8
discretion when its decision is so clearly wrong as to lie outside that zone within which reasonable

persons might disagree.” McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App. 2005);

accord Martinez v. State, 327 S.W.3d 727, 736 (Tex.Crim.App. 2010); see also Lyles v. State, 850

S.W.2d 497, 502 (Tex.Crim.App. 1993)(abuse of discretion occurs when trial court acts “without

reference to any guiding rules and principles”). Evidentiary error “generally constitutes

non-constitutional error and is reviewed under Rule 44.2(b).” Walters, 247 S.W.3d at 219. If an

evidentiary error “does not affect [the defendant’s] substantial rights,” it “must be disregarded.”

TEX.R.APP.P. 44.2(b).

Translation as Additional Level of Hearsay

At the outset, the State urges us in its second rebuttal point to view this issue as involving a

single level of hearsay as opposed to double hearsay, since the AT&T Spanish-language translator

served merely as a “language conduit” who neither added nor subtracted anything substantive to or

from the hearsay chain. Appellant appears to contend that a translation per se constitutes an

objectionable level of hearsay.

At common law, a translator constituted a separate link in the hearsay chain, thus creating

an additional level of objectionable hearsay to be overcome before a statement could be admitted

to prove the truth of the matter asserted. Saavedra, 297 S.W.3d at 344-45. However, the Texas

Court of Criminal Appeals has recognized an exception to this rule where the declarant “actually

authorized the interpreter to speak for him or adopted the interpreter as his agent[.]” Id. at 349.

In determining whether the translator was the declarant’s “agent” and was sufficiently reliable so

as to function as a mere language conduit, we must resort to four factors: (1) “who supplied the

interpreter[;]” (2) “whether the interpreter had any motive to mislead or distort[;]” (3) “the

9
interpreter’s qualifications and language skills[;]” and (4) “whether actions taken subsequent to

the translated statement were consistent with the statement as translated.” Saavedra, 297 S.W.3d

at 348; see also Cassidy v. State, 149 S.W.3d 712, 715-16 (Tex.App.--Austin 2004, pet. ref’d),

cert. denied, 544 U.S. 925, 125 S.Ct. 1648, 161 L.Ed.2d 486 (2005)(“Absent a motive to mislead,

distort or some other indication of inaccuracy, when persons speaking different languages rely

upon a translator as a conduit for their communication, the statements of the translator should be

regarded as the statements of the persons themselves without creating an additional layer of

hearsay.”), abrogated on other grounds by Wall v. State, 184 S.W.3d 730 (Tex.Crim.App. 2006).

No one factor in the Saavedra analysis is determinative. Saavedra, 297 S.W.3d at 349. We

review the trial court’s determination on the language conduit issue for abuse of discretion. Id.

Here, the trial court overruled Appellant’s double hearsay objection but did not rule on how

many layers of hearsay were at play or whether the AT&T translator served as a language conduit.

We assume that if the trial court was not satisfied that the translator was duly authorized by the

declarant, “it should [have] sustain[ed] a hearsay objection to the out-of-court translation” absent

the presence of a supervening hearsay exception. Id. Since the trial court overruled the

objection, and since the State only raised the medical exception to hearsay as between Rebecca and

Justice and did not provide an exception that would have penetrated a second level of hearsay

between the translator and Justice, we assume that the trial judge only found one level of hearsay

and that the translator was a language conduit by implication.

Next, we view that implicit ruling in light of the Saavedra factors to determine whether the

trial judge acted “without reference to any guiding rules and principles” in finding only a single

level of hearsay. Lyles, 850 S.W.2d at 502 (setting out abuse of discretion standard). Under the

10
first Saavedra factor, the fact that the hospital provided the translator as part of its standard

operating procedure weighs in favor of the translation’s reliability and neutrality. There is no

affirmative evidence in the record that would indicate the AT&T interpreter had any motive to

mislead the nurse or distort Rebecca’s testimony under the second Saavedra factor. However,

there is also no evidence in the record indicating the translator’s identity, qualifications,

educational background, language ability, or the like, which cuts against the trial court’s ruling

under Saavedra factor three. The State urges us to infer that the translator must have been

qualified by virtue of the fact that he or she was provided as part of a dedicated service by AT&T.

We decline to indulge that inference absent an independent basis in the record beyond Justice’s

testimony that the translator purportedly worked for AT&T.

Nevertheless, the last factor in this case is persuasive. We find that under factor four,

actions taken after the statement was translated were consistent with the translated statement

because the conversation between Rebecca and Justice continued on unabated. The strongest

indicator that Rebecca adopted the translator as her “agent” was the fact that she continued to

address Justice throughout the duration of the sexual assault exam. Further, the statement has

independent indicia of reliability. See Saavedra, 297 S.W.3d at 349 (recognizing that “the

ultimate reliability of the proffered evidence [is] always a core consideration in fashioning any

exception to the general rule against admitting hearsay evidence over objection”). The statements

the neutral-party translator relayed to Justice from Rebecca were substantively identical to the

statements that biased declarants Alejandra and Ramona relayed to El Paso County Sheriff’s

Office deputies from Rebecca shortly after she made her outcry.

As such, we find that the trial court did not abuse its discretion in implicitly finding that

11
Rebecca adopted the AT&T translator as her “agent” for hearsay purposes, and that only one level

of hearsay existed between Rebecca and Justice.

The Medical Diagnosis Exception to Hearsay

In its third rebuttal point on this issue, the State contends that within the single level of

hearsay found by the trial court, Rebecca’s statements fall within the medical diagnosis exception

to the hearsay rule.

As a general matter, out-of-court statements offered at trial for the truth of the matter

asserted therein constitute hearsay and are inadmissible. TEX.R.EVID. 801(d); TEX.R.EVID. 802.

The Texas Rules of Evidence provide a hearsay exception for “[s]tatements made for purposes of

medical diagnosis or treatment and describing medical history, or past or present symptoms, pain,

or sensations, or the inception or general character of the cause or external source thereof insofar as

reasonably pertinent to diagnosis or treatment.” TEX.R.EVID. 803(4). The State has provided

numerous citations from our sister circuits holding that the identity of an offender falls within the

ambit of this hearsay exception because it is relevant to treatment, particularly in incest and family

violence cases, insofar as it presents an environmental and safety issue that could frustrate

diagnosis and treatment. See, e.g., Bargas v. State, 252 S.W.3d 876, 896 (Tex.App.--Houston

[14th Dist.] 2008, no pet.)(identity of child abuser medically relevant because treatment could

include removing child from abusive environment); Beheler v. State, 3 S.W.3d 182, 189

(Tex.App.--Fort Worth 1999, pet. ref’d)(same).

We agree. Given the circumstances of this case and the family relationship between the

accuser and the defendant, the identity of Rebecca’s assailant was “reasonably pertinent to

diagnosis or treatment,” Bargas, 252 S.W.3d at 896, because it allowed Justice to assess whether

12
Rebecca’s home environment was a factor posing a continuing health risk to Rebecca. The

inculpatory statements fall squarely within the hearsay exception outlined in TEX.R.EVID. 803(4)

and the trial court did not abuse its discretion by admitting them. Appellant’s first major

sub-point in Issue One is overruled.

C. Confrontation Clause

In his second major sub-point in Issue One, Appellant argues that the admission of

Rebecca’s hearsay statements is prohibited under the Confrontation Clause because even though

Rebecca was present in the courtroom during trial, he could not effectively cross-examine her by

virtue of her mental disability.

Standard of Review

The Sixth Amendment to the United States Constitution 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. This federal constitutional protection has been incorporated

against the states through the Fourteenth Amendment. See generally Pointer v. Texas, 380 U.S.

400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965). The Confrontation Clause places certain

restrictions on the use of hearsay from non-testifying declarants, but “when the declarant appears

for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his

prior testimonial statements.” Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354,

1369 n.9, 158 L.Ed.2d 177 (2004). “[T]o implicate the Confrontation Clause, an out-of-court

statement must (1) have been made by a witness absent from trial and (2) be testimonial in nature.”

Woodall v. State, 336 S.W.3d 634, 642 (Tex.Crim.App. 2011), citing Crawford, 541 U.S. at 50-52,

59, 124 S.Ct. at 1363-65, 1368-69. Once both those conditions have been met and the

13
Confrontation Clause has been implicated, the admission of testimonial hearsay is constitutionally

barred unless both “(1) the declarant is unavailable and (2) the defendant had a prior opportunity to

cross-examine the declarant.” Woodall, 335 S.W.3d at 642.

We review constitutional rulings, including whether a statement is “testimonial” for

Confrontation Clause purposes, de novo. Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App.

2006). Admission of testimonial statements in violation of the Confrontation Clause is reviewed

for harmlessness beyond a reasonable doubt. Id. at 746; see also TEX.R.APP.P. 44.2. “If there is

a reasonable likelihood that the error materially affected the jury’s deliberations, then the error is

not harmless beyond a reasonable doubt.” Wall, 184 S.W.3d at 746. However, “the presence of

other overwhelming evidence” on point “may be an important factor in the evaluation of harm.”

Id.

Analysis

On these facts, we find that the Confrontation Clause has not been implicated because

Rebecca was not absent from trial, and we have no justification to depart from the presumption

that she was competent to testify. The trial record indicates that although the State did not call

Rebecca in its case-in-chief, Rebecca was physically present for trial—subject to the rule—at the

time the State sought to admit her hearsay testimony. In Woodall, the State read into the record a

statement made by a declarant who had been present earlier as a defense witness but who could not

be found when recalled to the stand for rebuttal. 336 S.W.3d at 641. The trial judge offered to

issue a writ of attachment to bring her to the stand for cross-examination, but the defendant

refused, arguing that the writ would be a “useless exercise in futility” because the witness’s

memory loss made her “unavailable” under TEX.R.EVID. 804(a)(3). Id. at 645. The Court of

14
Criminal Appeals held that the predicate “absence” implicating Crawford and “unavailability” as

defined in the Crawford analysis and the Texas Rules of Evidence were two separate concepts, and

that “where the declarant is not absent, but is present to testify and to submit to cross-examination,

our cases, if anything, support the conclusion that the admission of his out-of-court statements

does not create a confrontation problem.” Woodall, 336 S.W.3d at 642, citing California v.

Green, 399 U.S. 149, 162, 90 S.Ct. 1930, 1937, 26 L.Ed.2d 489 (1970). Because the witness was

within the court’s attachment power despite not being physically present, she was not “absent”

from trial and the Confrontation Clause was not implicated. Id.

Here, the circumstances are very similar to Woodall. The State declined to call Rebecca

in its case-in-chief. However, she was present at trial subject to the court’s attachment power, and

could have been called to testify by either the State or Appellant. Notably, Appellant never

attempted to call Rebecca as a witness. Although family members testified that Rebecca

displayed some difficulty communicating, Appellant did not at any point request that the court

assess and rule on Rebecca’s competency as a witness, meaning that we must presume she would

have been a competent witness. See TEX.R.EVID. 601(a)(“Every person is competent to be a

witness except as otherwise provided in these rules.”). The trial court admonished Appellant that

he could call Rebecca to the stand if he wished to examine her on the statements she made to the

nurse, and like Woodall, Appellant merely complained to the trial court during his objection that

calling Rebecca to the stand would be futile because her mental handicap rendered her

“unavailable” under the Rules of Evidence. However, a criminal defendant is estopped from

complaining on appeal that his Confrontation Clause rights are violated where he has the

opportunity to actually call his accuser to the stand and refuses based on purported futility under

15
the Rules of Evidence. Woodall, 336 S.W.3d at 644-45.

The Sixth Amendment affords a criminal defendant the extraordinary power to force a

witness to be subject to probing, often traumatic cross-examination in front of a jury before the

State may lawfully convict the defendant of a crime. See Crawford, 541 U.S. at 61, 124 S.Ct. at

1370 (noting that the Framers of the Constitution viewed the adversarial process of “testing

[evidence] in the crucible of cross-examination” as a vital procedural safeguard in criminal trials).

Our Constitution makes no exceptions to this fundamental principle, even in cases where the

witness may be a vulnerable individual who has been sexually assaulted by a family member.

See, e.g., De La Paz v. State, 273 S.W.3d 671, 680-81 (Tex.Crim.App. 2008)(reversing aggravated

sexual assault conviction where State failed to offer any affirmative evidence establishing that

seven-year-old girl’s outcry statements to a social worker that were admissible under the Rules of

Evidence were also admissible under Crawford).

But the other side of the Crawford coin is that if the witness is physically present when her

statement is offered and she may be brought to the stand via a writ of attachment, then there is no

constitutional basis for complaint. Woodall, 336 S.W.3d at 642. The defendant must call the

witness for cross-examination or else he forfeits his Crawford objection. Id. “To hold otherwise

would be to permit him to take advantage of his own wrong.” Id. at 644. Although the trial court

may ultimately find that a witness’s mental illness or condition does not render her incompetent to

testify and thus bring the defendant face-to-face with a mentally handicapped hostile witness, such

is the risk inherent in confrontation. “[T]he Confrontation Clause guarantees an opportunity for

effective cross-examination, not cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.” Woodall, 336 S.W.3d at 643, citing Delaware v.

16
Fensterer, 474 U.S. 15, 19, 106 S.Ct. 292, 294, 88 L.Ed.2d 15 (1985)(per curiam)[Emphasis in

original]. In any event, without a trial ruling on the witness’s competence, we are without

jurisdiction to assess whether her mental condition rendered her constructively “absent” from the

trial and “unavailable” for Crawford purposes. See Davis v. State, 313 S.W.3d 317, 347

(Tex.Crim.App. 2010)(Confrontation Clause claims must be preserved through timely and

specific objection ruled upon by the trial court).

We need not reach the issues of whether Rebecca’s statements to the nurse were

testimonial or whether her mental state rendered her unavailable under Crawford. Under these

facts, Appellant is not entitled to a Crawford analysis. Rebecca was physically present in the

courtroom subject to the rule for the duration of the trial, and Appellant had ample opportunity to

call her for cross-examination and place her competency to testify at issue. By failing to call her

to the stand, Appellant invited the constitutional error and has, therefore, waived his ability to

bring a Crawford challenge on appeal. As such, we find no justiciable Confrontation Clause issue

before us.

Issue One is overruled in its entirety.

II.

In his final two issues, Appellant lodges complaints against the admission of a sheriff’s

office report containing Ramona’s prior inconsistent statements on alternating grounds. In Issue

Two, Appellant argues that Ramona’s impeachment was procedurally defective under

TEX.R.EVID. 613(a) because Ramona did not unequivocally deny making the statement before the

police report was admitted as extrinsic evidence of prior inconsistent statements. In Issue Three,

Appellant contends that the trial court abused its discretion by allowing the State to call Ramona at

17
all, alleging that the State knew she would be a hostile witness and intended to use her merely as a

vehicle to admit otherwise inadmissible hearsay testimony from the police report. We assess

each purported error for abuse of discretion. Cameron, 241 S.W.3d at 19.

A. Admission of Extrinsic Impeachment Evidence

In Issue Two, Appellant contends that the trial court abused its discretion by admitting

portions of the police report into evidence because Ramona never unequivocally denied making

certain statements to a sheriff’s deputy. The State responds that Ramona’s purported memory

loss about the content of her discussion with the sheriff’s deputy was sufficient to allow the trial

judge to admit the report.

TEX.R.EVID. 613 allows for extrinsic evidence of a witness’s prior inconsistent statements

to be admitted for impeachment purposes where the witness has been asked about the time, place,

and circumstances of the statement and “afforded an opportunity to explain or deny such

statement.” TEX.R.EVID. 613(a). “If the witness unequivocally admits such bias or interest,

extrinsic evidence of same shall not be admitted.” Id. However, if the witness denies making

the statement or equivocates on whether he made the statement, the trial court may properly admit

the prior inconsistent statement into evidence. See McGary v. State, 750 S.W.2d 782, 787

(Tex.Crim.App. 1988). “Statements need not be explicitly contradictory to be in conflict . . . and

an inconsistency between testimony and a prior statement may arise from an evasive answer or

feigned inability to remember.” Gallegos v. State, Nos. 01-08-00606-CR, 01-08-00607-CR,

01-08-00608-CR, 2009 WL 793825, at *4 (Tex.App.--Houston [1st Dist.] Mar. 26, 2009, pet.

ref’d)(mem. op., not designated for publication), citing United States v. Bigham, 812 F.2d 943,

946-47 (5th Cir.1987). “If the witness admits making . . . written statements but upon inquiry

18
denies portions of the statement, then the portion that contradicts the witness and only that portion

may be proven for the purpose of impeachment.” McGary, 750 S.W.2d at 787.

Here, Ramona repeatedly denied any memory of what happened on May 5, 2009 beyond

going to the grocery store with Alejandra and admitted at the outset of her testimony that she did

not want to testify against her son and that she was reluctant to talk about the facts of the case.

Ramona initially claimed not to remember returning from the market and seeing her grandchildren

unsupervised in front of the house, but admitted that she remembered walking into the house and

not seeing her grandchildren or anyone else there. She also stated at first that she did not recall

making a statement to a sheriff’s deputy. She further said she did not remember telling the deputy

that she walked to her bedroom or noticing that the bedroom door was closed. She also denied

any memory of telling the sheriff’s deputy that she saw her daughter in bed, on her back, and

pulling her pants up, or that she also saw Appellant pulling his pants up. She said she did not

remember telling the sheriff’s deputy that Rebecca had said Gerardo put his penis inside her, or

that she believed Appellant had committed a sexual assault.

After asking her about her statement line by line, the State offered Ramona’s statement to

the sheriff’s deputy into evidence a total of three times. The first time, the trial court instructed

the State that it would not admit the document unless Ramona specifically admitted or denied

making the statements and gave her an opportunity to explain the discrepancies between the

statement and her testimony. After again asking Ramona about her memory of the statements, the

State moved to admit the evidence a second time, and the trial court again refused to admit the

evidence unless Ramona stated that the statements were untrue and not just that she did not

remember making them. The State then proceeded to question Ramona a third time, and Ramona

19
finally conceded that she made self-identifying statements to a sheriff’s deputy. She also

admitted that she told the deputy she had gone to the San Elizario supermarket and returned home

around 3:30 p.m. However, she continued denying any memory of telling the sheriff’s deputy

that her grandchildren were unsupervised when she returned home, that she saw her bedroom door

was closed, that she saw her daughter and her son pulling up their pants, or that Rebecca had told

her Appellant had put his penis inside her.

The State then offered the sheriff’s report into evidence a third time, and Appellant

objected on the basis of hearsay and improper impeachment. The trial court redacted Ramona’s

name, date of birth, age, address, and residence; references to her giving the statement of her own

free will; her statement that she went to the market to buy groceries and returned home at 3:30

p.m.; her statement that her grandchildren were unattended; and her statement that she entered the

house and did not see anyone. The judge reasoned that those portions should be redacted on the

basis that Ramona had admitted the truth of those statements. Then the trial court admitted the

remaining portions of the sheriff’s report as extraneous impeachment evidence in light of

Ramona’s purported memory loss, and issued a limiting instruction to the jury that it should use

the report to decide whether Ramona was a credible witness and not for the truth of the statements

therein.

The evidence in the record shows that Ramona was given the opportunity to explain the

statements she made to the sheriff’s deputy. She repeatedly denied any memory of what she told

the deputy and repeatedly stated that she did not know what happened that day. In viewing the

testimony as a whole, we believe that Ramona’s testimony that she did not remember what

happened that day contradicted her statements to the deputy. See Aguilar v. State, No.

20
14-07-00362-CR, 2008 WL 5058974, at *2 (Tex.App.--Houston [14th Dist.] Dec. 2, 2008, no

pet.)(mem. op., not designated for publication)(no abuse of discretion where statements admitted

when witness denied memory of statement). We also find that the trial judge gave Ramona

several opportunities to explain herself. As such, the formal requirements of Rule 613(a) were

met. The trial judge did not abuse her discretion in admitting Ramona’s prior inconsistent

statements coupled with the limiting instruction to the jury.

Issue Two is overruled.

B. Hostile Witnesses as Vehicles to Admit Otherwise Inadmissible Hearsay

In Issue Three, Appellant contends that the trial court abused its discretion in conducting a

Rule 403 balancing test under Hughes v. State, 4 S.W.3d 1, 5 (Tex.Crim.App. 1999), when it

allowed the State to commit subterfuge by offering a hostile witness solely to admit inadmissible

evidence through impeachment. The State points to our unpublished decision in

Castro-Valenzuela v. State, No. 08-08-00317-CR, 2010 WL 2949963 (Tex.App.--El Paso July 28,

2010, pet. ref’d)(not designated for publication), and contends that Appellant failed to preserve the

error by objecting to Ramona being called as a witness. The State paints with too broad a stroke

in construing Castro-Valenzuela’s holding, but is ultimately correct about preservation.

Castro-Valenzuela does not state that a party must lodge a Hughes objection prior to the calling of

a witness. Rather, in Castro-Valenzuela, the appellant objected on Hughes grounds only once

during voir dire. 2010 WL 2949963, at *5. The court never ruled on his objection and instead

asked him to re-urge it during direct testimony, when the objection would be ripe for review. Id.

The appellant then never made any subsequent objection. Id. Thus, the defendant failed to

preserve error by making a proper, timely objection and obtaining a ruling as required by the Rules

21
of Appellate Procedure. Castro-Valenzuela, 2010 WL 2949963, at *5.; see also TEX.R.APP.P.

33.1(a)(1); 33.1(a)(2).

Here, we also find that Appellant has failed to preserve the error for our review. Appellant

has not directed us to anything in the record we can construe as an objection to Ramona being

called as a witness for the sole purpose of subverting the Rules of Evidence to admit improper

hearsay. See TEX.R.APP.P. 38.1(i)(appellant’s brief must contain “appropriate citations to

authorities and to the record”). Our own search of the record shows that Appellant’s counsel

lodged an objection on the basis of hearsay and improper impeachment after the State had gone

through the sheriff’s deputy report line by line at least twice asking Ramona to admit or deny

making the statements contained in the report. Appellant’s counsel made a few stray remarks to

the judge about Ramona’s ability to give substantive testimony, and he insinuated that the State

intended to call Ramona for improper impeachment. However, he failed to make any legal

objection. As such, we find that the error has not been preserved.

Issue Three is overruled. We affirm the trial court’s judgment.

January 22, 2014
YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

(Do Not Publish)

22