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 2003-07

Barajas, Jose v. State ( 2003 )


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  • COURT OF APPEALS

    COURT OF APPEALS

    EIGHTH DISTRICT OF TEXAS

    EL PASO, TEXAS

     

    JOSE BARAJAS,                                                  )

                                                                                  )               No.  08-97-00405-CR

    Appellant,                          )

                                                                                  )                    Appeal from the

    v.                                                                           )

                                                                                  )     168th District Court

    THE STATE OF TEXAS,                                     )

                                                                                  )     of El Paso County, Texas

    Appellee.                           )

                                                                                  )     (TC# 970D05614)

                                                                                  )

     

     

    O P I N I O N   O N   R E M A N D

     

    Jose Barajas appeals his conviction of two counts of indecency with a child.  A jury found Appellant guilty and assessed punishment at 10 years= imprisonment, probated.  On original submission, we reversed and remanded the trial court=s judgment after determining that the trial court=s refusal to allow Appellant to ask voir dire questions regarding the victim=s age was constitutional error.  See Barajas v. State, No. 08‑97‑00405‑CR, slip op. at 5 (Tex.App.‑-El Paso Feb. 4, 1999, pet. granted)(not designated for publication), vacated, 93 S.W.3d 36 (Tex.Crim.App. 2002)(en banc).  The Court of Criminal Appeals granted the State=s petition for discretionary review and in its Barajas opinion, the Court held that the trial court did not abuse its discretion when it did not permit Appellant to ask venire members vague questions as to whether they could be fair and impartial in a case in which the victim was a certain age.  Barajas, 93 S.W.3d at 40-2.  The Court vacated our judgment and remanded the case with instructions to address Appellant=s remaining issues.[1]  Id. at 42,  overruling, Nunfio v. State, 808 S.W.2d 482 (Tex.Crim.App. 1991).  After a careful review of those twenty-one issues, we affirm the trial court=s judgment.

    Appellant does not contest the sufficiency of the evidence relating to his conviction, therefore we provide only a brief recitation of the facts.  C.B., the complainant, testified that in 1992 when she was nine years old her father, Appellant, kissed and fondled her in the bedroom on a number of occasions when her mother was away from the family=s apartment.  C.B. recalled that the first incident occurred when her mother was gone and C.B. and her younger sister were watching cartoons on the television.  Appellant told C.B. to go to the bedroom. Appellant walked in after C.B. and told her to sit down on the bed.  C.B. stated that Appellant was sitting next to her on the bed and started rubbing her back. Appellant then kissed her on the mouth. The kisses were pecks and Appellant did this for two to three seconds before leaving the room and going into the bathroom alone.  C.B. then went back to the living room and sat down.  C.B. felt confused and did not talk to Appellant about what had happened.

    The next incident occurred about a couple of Saturdays later. Again, C.B. and her sister were watching cartoons and Appellant told C.B. to go into the bedroom.  Appellant followed her in and told her to lie on the bed. After telling her twice to lie down, C.B. did what Appellant requested.  Appellant told C.B. to take off her t-shirt.  Appellant then lay next to C.B. and started pecking her on the mouth and touching her breasts with his hand.  This lasted for a couple of minutes and then Appellant left the room and went into the bathroom.  C.B. got up, put on her

    t-shirt, and returned to the living room to watch cartoons.  Appellant told C.B. not to tell her mother because if she did, her mother would be very mad at her.  C.B. did not tell anyone because she was scared and confused and did not know what to do.  C.B. also stated that she did not know that what had happened was a bad thing.

    The third incident occurred a couple of weeks later.  Again, C.B. was watching Saturday morning cartoons.  Appellant tapped her on the shoulder and told her to go into the bedroom. Appellant followed C.B. in and told her to take off her t-shirt and lie on the bed.  Appellant lay next to her and started kissing her on the lips and touching and kissing her breasts.  This happened for a couple of minutes before Appellant left and went into the bathroom. Appellant told C.B. not to tell anyone. C.B. felt scared and confused.

    C.B. also testified to a fourth incident between her and Appellant. As in the other incidents, C.B. was watching Saturday morning cartoons when Appellant tapped her on the shoulder and told her to go into the bedroom.  Appellant told her to take off her t-shirt and lie on the bed.  Appellant lay next to C.B., kissed her on the lips, and touched and kissed her breasts.  This time Appellant rubbed his hand on top of her shorts and took her hand and pulled it toward him as if he wanted her to touch the front part of his genitals. C.B. kept pulling her hand away and this went on for a couple of seconds.  Appellant then left and went to the bathroom.  C.B. put on her t-shirt and went to the living room.  C.B. testified that she did not tell anyone for awhile because she was confused about what was happening.

    In 1994, C.B. watched a movie at her elementary school about people who abuse and sexually abuse children.  C.B. recalled that the movie discussed the subject of being touched in the wrong places and it not feeling comfortable and to tell somebody because it was wrong.  After seeing the movie, C.B. knew that her father had done something that was wrong. C.B. then confided in her mother that Appellant had touched her in the wrong places.  At that point, Appellant was no longer living with the family and C.B. thought he had been gone about three years.  C.B. also testified that she did not have any reason to think Appellant was going to move back into the house and did not make up the allegations because her mother told her to do so.

    C.B.=s mother, Nancy Barajas, testified that she and Appellant were married in 1982 and have four children together.  In 1992, Ms. Barajas and Appellant separated and later divorced.  Ms. Barajas recalled that she was shocked and upset when she found out what had happened to C.B.  Before the day of C.B.=s outcry, Ms. Barajas had never spoken with C.B. about good touching and bad touching. Ms. Barajas contacted her sister-in-law, who advised her to call the police.  Ms. Barajas called the police the following day.

    At the time of C.B.=s outcry, Ms. Barajas did not know where her husband was and had no reason to think that he was coming back.  Ms. Barajas had asked Appellant to leave in 1992 and had not seen him until he was brought back for this case.  In the four years that passed, Ms. Barajas did not think he was going to come back into her life.  Ms. Barajas never told the children why she and Appellant separated. Ms. Barajas stated that she did not separate from Appellant because of C.B.=s allegations.  Further, Ms. Barajas testified that she had no problems with Appellant that would have made her put her daughter through this prosecution.

    At trial, Appellant testified in his defense. Appellant denied C.B.=s allegations of sexual contact.  Appellant stated that he loved C.B. and the other children and had not seen them in about three years.  Appellant first found out about his daughter=s accusations in August 1995 upon his arrest in Wisconsin, where he had been living for about two and half years. Appellant stated that he had no problems with his children.

    The jury found Appellant guilty of two counts of indecency with a child and sentenced him to ten years= imprisonment, probated.  Appellant timely appealed his conviction.

    Limitation on Cross-Examination

    In Issues Five through Ten, Appellant argues that the trial court abused its discretion when it restricted cross-examination of C.B. and Nancy Barajas.  Specifically, Appellant contends that the trial court erred in not allowing Appellant to cross-examine C.B. about her parents= divorce proceeding and in not allowing Appellant to cross-examine Ms. Barajas about the divorce proceedings and the contempt proceeding for failure to pay child support.  Appellant asserts that the trial court=s refusal to restrict cross-examination of C.B. and Ms. Barajas violated his right to confrontation because it denied admission of evidence to show their bias and motivation to fabricate the allegations against Appellant.

    The Sixth Amendment guarantees the right of an accused in a criminal proceeding to be confronted with the witnesses against him. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974). Within this right, as applied to the states through the Fourteenth Amendment, is a defendant=s right of cross-examination.[2]  Davis, 415 U.S. at 315-16, 94 S.Ct. at 1110; Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067-68, 13 L.Ed.2d 923 (1965).  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.  Carroll v. State, 916 S.W.2d 494, 497 (Tex.Crim.App. 1996).  However, the trial court retains broad discretion to impose reasonable limits on cross-examination to prevent harassment, prejudice, confusion of the issues, witness safety, and introduction of cumulative or collateral evidence.  See Lagrone v. State, 942 S.W.2d 602, 613 (Tex.Crim.App. 1997), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997); Carroll, 916 S.W.2d at 496-97.  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), cert. denied, 522 U.S. 994, 118 S.Ct. 557, 139 L.Ed.2d 399 (1997).  An abuse of discretion is shown when the trial court=s determination is so clearly wrong as to lie outside the zone of reasonable disagreement.  Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App. 1992), cert. denied, 509 U.S. 926, 113 S.Ct. 3046, 125 L.Ed.2d 731 (1993). 


    Outside the presence of the jury, defense counsel explained Appellant=s need to cross-examine C.B. and Ms. Barajas about the divorce and the familial relationships.[3]  Defense counsel argued that he wanted to question C.B. about the divorce because the child was hostile to Appellant and did not want Appellant to return, therefore she made allegations against him.  Defense counsel thought it inconceivable that C.B.=s outcry did not play a part in Ms. Barajas filing for divorce a few weeks later. Defense counsel reasoned that Ms. Barajas and her daughter were hostile towards Appellant before the divorce, which led to a commonly held feeling that they wanted Appellant to stay out of the house. Under defense counsel=s theory of the case, there was a reason for disliking Appellant and this bias continued on to a point where C.B. made allegations against Appellant.  Defense counsel argued that the outcry was a result of C.B.=s dislike towards Appellant, which continued on as a vendetta to get back at him.  The trial judge remarked that the divorce itself had nothing to do with C.B.=s outcry under that theory and defense counsel replied that it did not, but the divorce was the last stage of acrimony between Appellant and Ms. Barajas, as husband and wife.  The trial judge thought it unnecessary for Appellant to get into the divorce on cross-examination.  The trial judge restricted Appellant from questioning C.B. and Ms. Barajas about the divorce proceedings, determining that it would create problems in the jury=s comprehension of the facts in this case.[4]

    After cross-examining C.B. and Ms. Barajas, defense counsel again asked the trial court outside the jury=s presence to question these witnesses about the divorce proceedings and the later child support action filed against Appellant.  Defense counsel again argued that since the divorce occurred three weeks after C.B.=s outcry, it may be relevant to the case.  Defense counsel asserted that it may be that C.B. was motivating her mother to file the divorce.  The trial judge denied Appellant=s request to enter the divorce petition and final decree into evidence and remarked that such evidence would confuse the entire proceeding and the issue in this case.  Appellant then cross-examined C.B. and Ms. Barajas regarding the divorce and proffered their testimony as bills of exception.

    C.B. testified outside the jury=s presence to the following with respect to her parent=s divorce.  C.B. was aware that her parents were divorced and that her mother had filed for divorce sometime shortly after her outcry.  C.B. admitted that she did not want Appellant to move back in or come back home at the time she made her outcry.  C.B. also admitted that she did not think of Appellant as her father anymore because of what he had done to her.  In response to the State=s voir dire questions, C.B. stated that she did not know on what date her mother filed for divorce nor did she know how long her mother had been thinking about filing for divorce.  At the time of her outcry, C.B. only knew that her parents were separated and she believed that Appellant was gone and was not coming back.  C.B. testified that her decision to outcry about what Appellant had done had nothing to do with her mother filing for divorce. At the conclusion of C.B.=s testimony on the divorce, the trial court remarked that in evaluating the prejudicial and probative value of this evidence, it found there to be no probative value to it and that it would just confuse the issues.

    Ms. Barajas also testified outside the jury=s presence about her divorce from Appellant. Ms. Barajas was not sure if she filed the divorce before or after C.B.=s outcry.  She admitted that one of the purposes of filing divorce was to make sure that Appellant did not come back.  Ms. Barajas also admitted that she did not want Appellant in her life anymore nor did she want him in her daughter=s life because of what had happened.  The divorce, however, was unrelated to the outcry and was between Appellant and her.  Ms. Barajas stated that she was only waiting for a pro bono appointed attorney to be able to file her divorce case.  Ms. Barajas testified that she had told Appellant to leave and not come back. Years passed and she had no idea where Appellant was and he never gave her any indication that he was coming back. Ms. Barajas did not believe Appellant was coming back, but they were still married so it was possible that Appellant could want to come back.  Ms. Barajas stated that she had made her decision to file for divorce before C.B. told her anything because she had her own reasons for doing so.  Even if C.B. had not made her outcry, Ms. Barajas would not have changed her decision to divorce Appellant.  Her decision was based on the way Appellant behaved with her during the marriage and nothing else.  Ms. Barajas recalled that she filed for divorce by publication because she did not know where Appellant was living and that Appellant never contacted her, did not appear for the divorce proceedings, and never called her afterwards.

    With respect to current child support litigation, Ms. Barajas testified in the bill that after Appellant was found, he was ordered to pay child support.  Ms. Barajas stated that there had been a hearing in which Appellant was ordered to start paying child support, but he had not paid it.  Ms. Barajas was not angry at Appellant for not paying child support, but did think it was unfair.  Defense counsel expanded his proffer of evidence to include on-going litigation between Ms. Barajas and Appellant regarding child support. Defense counsel argued that this evidence showed a bias against Appellant.  The trial court denied Appellant=s request.

     

    A trial court has discretion under Rule 403 of the Texas Rules of Evidence, as it did under its predecessor in the Texas Rules of Criminal Evidence, to exclude relevant evidence Aif its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, or needless presentation of cumulative evidence.@[5] See Tex.R.Crim.Evid. 403 (Repealed).  Confusion of the issues can occur when admitting certain evidence raises the probability that a side issue may be created which will unduly distract the jury from the main issues in the case.  See Smith v. State, 959 S.W.2d 1, 13 (Tex.App.--Waco 1997, pet. ref=d). 


    Here, Appellant sought to introduce evidence concerning Appellant=s divorce from Ms. Barajas and subsequent litigation for child support.  During the State=s case-in-chief, C.B. testified that at the time of her outcry, Appellant had been gone for years and she did not think he was coming back again.  Ms. Barajas also did not think Appellant was going to come back into her life and had never told the children why they separated.  Further, Ms. Barajas denied that C.B.=s allegation was the reason for the separation. The trial court remarked that based on the lack of fear of Appellant=s return, there was no probative value to support defense counsel=s theory that the outcry was meant to keep Appellant away from the home.  We observe that the trial court did not limit Appellant=s ability to question C.B. and Ms. Barajas about hostility and tensions within the familial relationships generally, testimony which may have presented evidence to support Appellant=s defensive theory in this case.  Based on the record before this Court, we find that the trial court could have reasonably concluded that the excluded evidence presented a danger of confusion of the issues, which substantially outweighed any probative value.  Issues Five through Ten are overruled.

    Prior Statements

    In Issues Eleven through Fifteen, Appellant argues that the trial court erred in failing to allow Appellant to confront defense witnesses, Officer Bridgette Carrillo and Officer Thomas John Belcher with their written statements taken from interviews with C.B. and Ms. Barajas about C.B.=s allegations against Appellant.  Appellant asserts that he sought to elicit testimony from the officers as to C.B.=s initial statements to the police officers in order to show any inconsistencies with her trial testimony.  Appellant contends that the trial court=s action violated his right to confront witnesses and his right to due process and due course of law under the federal and Texas Constitutions.  We review the trial court=s evidentiary ruling under an abuse of discretion standard.  See Cantu, 939 S.W.2d at 635.

    Examination of Officer Carrillo

    At trial, Appellant called Officer Carrillo as a witness to question her about her investigation of C.B.=s case.  Officer Carrillo stated that she was familiar with the complainant=s name, but needed to review the case. Defense counsel was allowed to show Officer Carrillo her statement and notes in the case.  Defense counsel asked Officer Carrillo if examining the documents had refreshed her recollection of the case and Officer Carrillo replied that she did not recall the case itself.  Officer Carrillo stated that her notes refreshed her memory, but she could not recall the incident when she took statements or the case, other than what was described in the notes.  The State prosecutor requested that defense counsel make sure that Officer Carrillo had an independent recollection of the events.

    Defense counsel continued direct examination by questioning Officer Carrillo generally about child interviewing procedure and then asked Officer Carrillo if she had an independent recollection of whether she had interviewed C.B. alone or with her mother.  Officer Carrillo stated that she could not recollect on her own memory. Defense counsel presented Officer Carrillo with her report to refresh her memory and Officer Carrillo testified that C.B.=s mother was not present.  Defense counsel then asked Officer Carrillo if she recalled C.B. telling her that she had seen a movie the night before.  Officer Carrillo stated that she could not recall from her own memory, but that this information was in the report presented to her.  The State objected on grounds that defense counsel was reading from documents not admitted into evidence, rather than using the documents to refresh the witness=s recollection.  The State later objected to defense counsel=s line of questioning and requested that defense counsel continue to question Officer Carrillo as to her independent recollection.  The State also argued that it would request admission of the whole document under the rule of optional completeness if Officer Carrillo continued to read only portions of her report.  The trial court sustained the State=s objection.

    Defense counsel continued his examination of Officer Carrillo, questioning her as to specific allegations in the report from the officer=s interview of Ms. Barajas.  Officer Carrillo testified that she could not recall from her memory or anything else if Ms. Barajas actually said that C.B. told her that Appellant had made C.B. lie on top of him or he on top of C.B. Officer Carrillo stated that the only way that she knew it actually occurred was because it was written in her report.  On cross-examination, Officer Carrillo testified that even after reading her statement, she did not remember seeing or talking with C.B. and Ms. Barajas or taking their statements.  The State then attempted to question Officer Carrillo about certain portions of her report and defense counsel objected on hearsay grounds.  Defense counsel explained to the trial judge that Appellant did not seek to admit Officer Carrillo=s statement into evidence, but rather the document was being used to refresh the witness= recollection, which did not implicate the rule of optional completeness.

    On appeal, Appellant argues that the trial court erred in not allowing him to confront Officer Carrillo with her prior statement. Appellant asserts that under Rule 803(5) of the Texas Rules of Criminal Evidence,[6] the recorded recollection hearsay exception, even if a witness=s memory is not refreshed, she can testify from her statement so long as the statement was made when the events were fresh in the witness=s mind.  Appellant did not raise this argument at trial.  See Tex.R.App.P. 33.1.  Rather, defense counsel argued to the trial court that he had not asked Officer Carrillo to read any of her statement, but instead asked her to look at her statement to refresh her memory.  See Tex.R.Crim.Evid. 611 (Repealed).  Appellant did not attempt to introduce Officer Carrillo=s testimony into evidence as a recorded recollection hearsay exception.  Further, Appellant did not present evidence to show that Officer Carrillo=s testimony qualified as a hearsay exception. See Johnson v. State, 967 S.W.2d 410, 416 (Tex.Crim.App. 1998) (discussing the four elements for setting forth the proper predicate for admissibility of recorded recollections). Issues Eleven through Fifteen as they relate to Appellant=s examination of Officer Carrillo are overruled.

    Examination of Officer Belcher

    Within Issues Eleven through Fifteen, Appellant also contends that the trial court erred in sustaining the State=s objections to Officer Belcher=s testimony concerning the supplemental report he made while investigating C.B.=s allegations.  Appellant asserts that in so doing, the trial court denied his right to confront Officer Belcher with his prior statement to show that C.B.=s story had changed since she first reported the allegations to the police.

    Officer Belcher testified that he was involved in investigating an alleged offense against C.B., but could not recall the exact date of the investigation.  Defense counsel presented Officer Belcher with a supplemental report in which Officer Belcher was listed as the reporting officer.   After reviewing the document, Officer Belcher stated that it refreshed his recollection that the investigation occurred in early August 1994. Defense counsel proceeded to question Officer Belcher as to what he recalled from speaking with C.B. about the allegations and the State objected on hearsay grounds and improper impeachment of C.B.  The trial court sustained the State=s objection, but permitted examination of Officer Belcher on voir dire to establish whether he took C.B.=s statement in his report.

    Outside the jury=s presence, Office Belcher testified that he did not remember C.B.=s case and did not remember what was said when he talked to C.B. and Ms. Barajas.  Officer Belcher did not remember actually writing the report, but knew that he did because it has his name on it.  Officer Belcher conceded that he could not testify on the witness stand that the report refreshed his recollection as to what C.B. told him. Officer Belcher also stated that the report was just a brief synopsis of what had happened and he did not know if C.B. told him the information or if Ms. Barajas told him that this was what C.B. had said.  Even after reviewing the report, Officer Belcher could not remember who, either C.B. or her mother, had told him what in his statement.  Defense counsel requested that Officer Belcher=s report be admitted into evidence as an exhibit and the trial court denied the request.  On direct examination before the jury again, Officer Belcher testified that he did not remember what C.B. and Ms. Barajas had told him and that he had limited involvement in this case.

    On appeal, Appellant contends that Officer Belcher=s testimony about details in his report was admissible under Rule 803(5) of the Texas Rules of Criminal Evidence.  As with Officer Carrillo=s examination, however, Appellant did not present this argument to the trial court and Officer Belcher=s statement was not Ashown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly . . . .@  See Tex.R.Crim.Evid. 803(5)(Repealed).  Issues Eleven through Fifteen are overruled in their entirety. 

    Character Witnesses

    In Issues Sixteen through Eighteen, Appellant contends that the trial court erred in sustaining the State=s objections to character witnesses= testimony regarding their personal knowledge of Appellant as a law-abiding citizen and his veracity and their knowledge of Appellant=s reputation in the community for acting appropriately around children and for being a law-abiding citizen.

    The defendant in a criminal case may introduce evidence of a specific pertinent character trait for the purpose of proving action in conformity therewith on a particular occasion.  See Tex. R.Crim.Evid. 404(a)(1)(Repealed), current version at Tex.R.Evid. 404(a)(1); Thomas v. State, 669 S.W.2d 420, 423 (Tex.App.‑‑Houston [1st Dist.] 1984, pet. ref=d).  Three basic methods are available for proving character:  (1) reputation of the person in the community; (2) personal opinion testimony of witnesses who know the person; and (3) specific instances of conduct where it is an essential element of a charge, claim, or defense.[7]  See Tex.R.Crim.Evid. 405 (Repealed); Hedicke v. State, 779 S.W.2d 837, 839-40 (Tex.Crim.App. 1989), cert. denied, 493 U.S. 1044, 110 S.Ct. 840, 107 L.Ed.2d 836 (1990).  Different predicates are required for reputation and opinion testimony.  Calderon v. State, 950 S.W.2d 121, 131 (Tex.App.‑‑El Paso 1997, no pet.).  To be qualified to testify as to the defendant=s reputation, the witness must be familiar with that reputation based on discussions with others about the defendant or on hearing others discuss the defendant=s reputation.  Turner v. State, 805 S.W.2d 423, 429 (Tex.Crim.App. 1991), cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991); House v. State, 909 S.W.2d 214, 218 (Tex.App.--Houston [14th Dist.] 1995), aff=d, 947 S.W.2d 251(Tex.Crim.App. 1997). To be qualified to give an opinion of the accused=s character, the witness must be familiar with the underlying facts or information upon which the opinion is based. See Tex.R.Crim.Evid. 405(a)(Repealed) now Tex.R.Evid. 405(a).  We apply an abuse of discretion standard in determining whether a trial court erred in admitting such evidence.  See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App. 1991)(Opin. on reh=g). Further, we will uphold the trial court=s ruling if it can be upheld on any valid theory, regardless of whether the State asserted the theory at trial, if the State is not raising the issue on appeal.  See State v. Mercado, 972 S.W.2d 75, 77-8 (Tex.Crim.App. 1998); Romero v. State, 800 S.W.2d 539, 543 (Tex.Crim.App. 1990).

    Character Testimony of Julieta Morales

    Julieta Morales testified that she managed the apartments where Appellant, his wife, and children had previously lived.  Ms. Morales stated that she has known Appellant for seven years.  She had an opportunity to see Appellant interact with his family and never saw Appellant doing anything wrong with respect to acting inappropriately with his children.  Ms. Morales lived in the same general community with Appellant and stated that she knew his reputation in that community for being law-abiding and that reputation was good.  Ms. Morales also stated that she knew his reputation for truthfulness and that reputation was good.  Defense counsel then asked Ms. Morales, ADo you have an opinion as to whether Mr. Barajas is a law-abiding person?@ The State objected on relevancy grounds and the trial court sustained the objection.  Defense counsel then asked, ADo you have an opinion as to whether Mr. Barajas acts appropriately around children?@ and the State objected, arguing that the question called for speculation and needed to be based on personal knowledge.  The trial court sustained the State=s objection.

    The State contends on appeal that Appellant failed to establish a basis for asking Ms. Morales= opinion about Appellant being a law-abiding person or about whether Appellant acts appropriately around children.  While Ms. Morales did offer testimony as to Appellant=s reputation for being law-abiding, defense counsel did not lay the proper predicate for asking Ms. Morales= personal opinion on Appellant=s law-abiding nature, that is, defense counsel did not establish Ms. Morales= familiarity with the underlying facts or information upon which her opinion was based.  See Tex.R.Crim.Evid. 405(a)(Repealed).

    Defense counsel also failed to lay the proper predicate for asking Ms. Morales= opinion as to whether Appellant acts appropriately around children.  Ms. Morales did testify that she had opportunity to see Appellant interact with his children, however, the trial court could have reasonably determined that defense counsel had not yet shown that Ms. Morales was qualified to give an opinion as to Appellant=s behavior around children generally or that counsel had not clearly established the information upon which Ms. Morales based her opinion on this matter by the format of the question posed.  Even if the trial court erred in sustaining this question, such error was non-constitutional in nature.  See Tex.R.App.P. 44.2(b); King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).  Given that other character witnesses testified that in their opinion, Appellant acted appropriately around his and other children, we are fairly assured that any error, if any, did not influence the jury=s verdict.  See King, 953 S.W.2d at 271; Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998).  Therefore, we cannot conclude that the trial court abused its discretion in sustaining the State=s objection to defense counsel=s questions. 

    Character Testimony of Maria Molina

    Maria Molina testified that she has known Appellant for about ten or eleven years as a friend through her brother.  Ms. Molina stated that they lived in the same community and that she has had an opportunity to see Appellant interact with his children several times about six years ago.  Ms. Molina never saw Appellant treat his children badly and he has always acted appropriately with her brother=s children.  Defense counsel then asked Ms. Molina, ADo you know what Mr. Barajas= reputation for being law-abiding is in the community?@ to which the State objected on relevancy grounds and the trial court sustained the objection. Defense counsel then asked, ADo you know Mr. Barajas= reputation for being appropriate with children in the community?@ The State objected, arguing that the question was not relevant and the trial court sustained its objection.  Ms. Molina then testified that she knew Appellant=s reputation for being truthful in the community and that reputation was good.  Ms. Molina also stated that in her opinion, Appellant acts appropriately with children.  The trial court, however, sustained the State=s objection to the following questions:  ADo you personally have an opinion as to whether Mr. Barajas is law-abiding or not?@ and ADo you have an opinion as to whether Mr. Barajas is an honest person?@

    The State contends on appeal that Appellant failed to establish a basis for the offered opinion and reputation testimony of Ms. Molina. Ms. Molina did testify that she lived in the same community as Appellant and had known him for many years. However, defense counsel did not lay the proper predicate regarding how Ms. Molina was familiar with Appellant=s reputation for being law-abiding or for being appropriate with children in the community beyond her acquaintanceship with Appellant.  Defense counsel also did not lay the proper predicate for asking Ms. Molina her personal opinion as to whether Appellant was law-abiding or an honest person.  The trial could have reasonably determined that in defense counsel=s line of questioning, he had not yet established the information upon which Ms. Molina was to base her opinion with respect to these matters.  Therefore, we cannot conclude that the trial court erred in sustaining the State=s objection to these contested questions.

    Character Testimony of Rosa Elena Silva

    Rosa Elena Silva testified that she lives in Juarez, Mexico and has known Appellant for about eleven years as a friend of her brother. Ms. Silva stated that she had an opportunity to see Appellant interact with his children and had never seen Appellant do anything inappropriate.  Defense counsel then asked Ms. Silva, ADo you have an opinion as to whether Mr. Barajas is a law-abiding person or not?@  Without stating its reasoning, the State objected and the trial court sustained the objection.  Ms. Silva then testified that in her opinion, Appellant is good towards his children and acts appropriately towards them.  Defense counsel then asked, ADo you have an opinion as to whether or not Mr. Barajas is an honest person?@ The trial court sustained the State=s objection to this question.

    The State contends on appeal that defense counsel in his line of questioning failed to establish a basis for Ms. Silva=s opinion with respect to Appellant being a law-abiding person or an honest person.  Ms. Silva did testify that she knew Appellant for many years, but defense counsel did not try to establish the proper predicate before questioning Ms. Silva about her opinion on whether Appellant was law-abiding and honest.  Even if Ms. Silva=s lengthy  acquaintanceship with Appellant and having seen him interact with his children was sufficient personal knowledge to base an opinion as to Appellant=s law-abiding nature and honesty, we cannot conclude that the trial court=s error, if any, was harmful.  Given that other character witnesses testified to their opinion that Appellant was honest and law-abiding and that Appellant had a reputation for being law-abiding and truthful, we are fairly assured that any error, did not influence the jury=s verdict.  See Tex.R.App.P. 44.2(b); Johnson, 967 S.W.2d at 417. 

    Character Testimony of Alvaro Silva

    Alvaro Silva testified that he and Appellant were compadres and that he has known Appellant for thirteen years. Mr. Silva has six children.  Mr. Silva stated that he had an opportunity to see Appellant interact with his children as well as with Appellant=s own children on several occasions and never saw Appellant act inappropriately with either set of children. Mr. Silva stated that Appellant=s children did not appear afraid of him, but rather acted very close to Appellant.  Defense counsel then asked, ADo you know Mr. Barajas= reputation for being

    law-abiding?@ and the trial court sustained the State=s objection.  Defense counsel then asked, ADo you know Mr. Barajas= reputation for being appropriate with children?@ and the State objected, arguing that this was not a proper reputation question.  The trial court sustained the objection.  Mr. Silva then testified that he knew Appellant=s reputation for being truthful and that Appellant is honest.  Defense counsel then asked, ADo you personally have an opinion as to whether Mr. Barajas is a law-abiding person?@ and the trial court sustained the State=s objection to the question as not relevant. Mr. Silva then testified that in his opinion, Appellant acts appropriately with children and treats them very well.  Mr. Silva stated that he never saw Appellant hitting or hurting his children.

    The State contends on appeal that Appellant failed to establish the basis for the offered opinion and reputation testimony of Mr. Silva. Mr. Silva did testify that he had known Appellant thirteen years, however, defense counsel did not establish beyond this fact how Mr. Silva was familiar with Appellant=s reputation such that he was qualified to offer testimony about Appellant=s reputation for being truthful and honest.  Defense counsel also did not lay a proper predicate before questioning Mr. Silva about his opinion on whether or not Appellant is a

    law-abiding person.  Therefore, the trial court did not abuse its discretion in sustaining the State=s objections to defense counsel=s line of questioning during Mr. Silva=s testimony. 

    Having considered Appellant=s Issues Sixteen through Eighteen, we overrule them in their entirety.

    Excluding Additional Character Witnesses

    In Issues Nineteen through Twenty-One, Appellant argues that the trial court erred in not allowing Appellant to call three additional character witness during his case-in-chief.

    Appellant contends that the trial court=s ruling denied him his right to due process and due course of law under the federal and Texas Constitutions.

    After introducing Mr. Silva=s testimony at trial, Appellant attempted to call Laura Herrera as a witness.  The State objected to the cumulative nature of the evidence. Defense counsel explained to the trial judge that Ms. Herrera is one of Mr. Silva=s daughters and would offer the same testimony and would also state that Appellant is a good person.  The trial court sustained the State=s objection to cumulative witnesses.  In addition to Ms. Herrera, defense counsel had wanted to call two other witnesses, Veronica Marquez and Yolanda Silva. Appellant=s counsel proffered to the trial court that each witness would testify as their personal opinion that Appellant was a truthful person, who acts appropriately around children, and is law-abiding.  Further, they would testify as to their knowledge of Appellant=s reputation in the community as being a truthful, law-abiding person, who behaves appropriately around children.

    We review the trial court=s evidentiary rulings under the abuse of discretion standard.  Montgomery, 810 S.W.2d at 391.  Texas Rule of Criminal Evidence 403 favors admissibility of relevant evidence, unless its Aprobative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.@[8]  Tex.R.Crim.Evid. 403 (Repealed) now Tex.R.Evid. 403. The Texas Court of Criminal Appeals noted in Alvarado v. State that Texas courts have long recognized cumulativeness as a factor allowing the exclusion of probative evidence.  Alvarado v. State, 912 S.W.2d 199, 213 (Tex.Crim.App. 1995).  Further, the Court stated that Rule 403 authorizes exclusion of relevant evidence because of considerations of undue delay, or needless presentation of cumulative evidence, factors which are concerned with the efficiency of judicial proceedings rather than the threat of inaccurate decisions.  Id. at 212.

    Appellant cites two cases in support of his argument that the trial court committed error.   Relying on Green v. State, 700 S.W.2d 760 (Tex.App.--Houston [14th Dist.] 1985), aff=d, 727 S.W.2d 272 (Tex.Crim.App. 1987) and Thompson v. State, 379 S.W.2d 664 (Tex.Crim.App. 1964), Appellant argues that the trial court erred in not allowing him to call the three additional character witness because the State never stipulated to the jury that the testimony of the excluded witnesses would be the same as the other character witnesses nor did it stipulate as to Appellant=s good reputation.  However, we find Appellant=s case distinguishable.

    In Thompson, the issue of appellant=s suspension of sentence was submitted to the jury pursuant to former Art. 778 C.C.P, which required the court to A>permit testimony as to the general reputation of defendant to enable the jury to determine whether to recommend the suspension of sentence.=@ Thompson, 379 S.W.2d at 665.  After appellant had called four character witnesses to testify as to her reputation for being a peaceful and law-abiding citizen, the court refused to permit appellant to introduce further testimony.  Id. at 666.  Referencing Branch=s Ann.P.C.2d 176, Sec. 170, the Thompson Court stated that Astatutory right of an accused to introduce testimony of his general reputation for the consideration of the jury in determining whether to recommend the suspension of his sentence is not limited by the above rule, unless the state unequivocally admits that he bears a good reputation, or after he has offered the testimony of a reasonable number of witnesses in support of his reputation.@ Id. at 667.  Unlike Thompson, Appellant did not offer the additional character witness testimony pursuant to a statutory right. 

    In Green, the court of appeals relied on Thompson in holding that the trial court erred in not permitting appellant to call additional character witness at the guilt/innocence stage of the trial to testify to appellant=s reputation for being a peaceful and law-abiding citizen where the State failed to stipulate to the defendant=s good reputation.  Green, 700 S.W.2d at 761.  The Court of Criminal Appeals granted the State=s petition for discretionary review on the its sole ground, whether appellant had preserved error for review.  Green, 727 S.W.2d at 273.  With respect to the Thompson precedent, the Court of Criminal Appeals in affirming Green stated:


    The Court of Appeals opinion cited Thompson v. State, 379 S.W.2d 664 (Tex.Crim.App.1964) for the proposition that the appellant was, absent a stipulation by the State that the appellant did have a good reputation, entitled to call the two additional witnesses during the guilt‑innocence stage of the trial.  It should be noted Thompson v. State, Id., was concerned with the action of the trial court in refusing to permit the defendant to call several (9) additional reputation witnesses during the punishment stage of the trial.  Thompson v. State, Id., is therefore not directly in point.  However, a resolution of this distinction by this Court must come in another case because the State=s Petition for Discretionary Review did not assert that as a basis for review.  Therefore, since the question of harm is not before this Court we will defer to the Court of Appeals decision on this issue.

     

    Green, 727 S.W.2d at 274-75.

    Given that the Court of Criminal Appeals did not address the applicability of Thompson holding to exclusion of character witness testimony in the guilt-innocence stage of the trial, we find the precedential value of Green questionable in this regard. Therefore, we find that the Thompson holding is inapplicable to Appellant=s case. 


    Here, Appellant introduced testimony from five character witnesses who, despite the State=s various objections, offered reputation and opinion testimony as to Appellant being an honest and law-abiding person who acts appropriately around children.  Ms. Julieta Morales testified that she knew Appellant=s reputation in the community for being law-abiding and that his reputation was good.  Ms. Morales also stated that she knew Appellant=s reputation for truthfulness and that reputation was good.  She had an opportunity to see Appellant interact with his family and never saw Appellant doing anything wrong with respect to acting inappropriately with his children. Ms. Maria Molina testified that Appellant had a good reputation for being truthful in the community.  Ms. Molina also testified that in her opinion, Appellant acts appropriately with children.  Mr. Alvaro Silva testified that he knew Appellant=s reputation for being truthful and that Appellant is honest.  Mr. Silva also testified that he never saw Appellant act inappropriately with his or Appellant=s own children.  Ms. Rosa Elena Silva testified that in her opinion, Appellant is good towards his children and acts appropriately towards them. Ms. Silva stated that she had an opportunity to see Appellant interact with his children and had never seen Appellant do anything inappropriate.  Ms. Julia Sandoval testified that Appellant was a very honest person.

    Based on the admitted character witness testimony, we conclude the trial court did not abuse its discretion in limiting further cumulative testimony, which defense counsel conceded would be similar testimony to that already introduced into evidence.  Assuming arguendo that the trial court erred, such error was not harmful to Appellant.  A trial court=s refusal to admit evidence is reversible only if the evidence is relevant and its exclusion is harmful to the accused. Canto‑Deport v. State, 751 S.W.2d 698, 700 (Tex.App.‑‑Houston [lst Dist.] 1988, pet. ref=d); see Bird v. State, 692 S.W.2d 65, 73 (Tex.Crim.App. 1985), cert. denied, 475 U.S. 1031, 106 S.Ct. 1238, 89 L.Ed.2d 346 (1986).  If there is a reasonable probability that the absence of that evidence contributed to the conviction or punishment, then the trial court=s ruling was harmful.  Canto‑Deport, 751 S.W.2d at 700. In Appellant=s case there is no harm because it is unlikely that the absence of the additional witness testimony contributed to Appellant=s conviction and similar testimony was introduced to the jury through Appellant=s other five character witnesses.  Therefore, we overrule Appellant=s Issues Nineteen through Twenty-One. 

    Jury Argument

    In Issues Twenty-Two through Twenty-Five, Appellant argues that the trial court erred in overruling his objection to the State=s closing argument.  Appellant=s complaint is based on the following portion of the State= closing argument to the jury:

    Prosecutor:       Once again, who is hiding the ball?  Why don=t we have explanation for that?  How come we=re just using bits of this?  Maybe we can argue effectively.  Does this mean [C.B.] is lying?  No. Think of one thing that does.  You know, here=s the other thing we don=t talk about.  And I=m going to tell you something.  Mr. Roberts [defense counsel] knows that despite all of his efforts and Mr. Morales= [defense counsel] efforts, there=s no real reason to think they=re lying, just because these people are like Mr. Martin.[9]  And he knows that other things exist which only support the truth.

     

    Defense:           Your honor, I=m going to object to Counsel telling what I know to support his arguments.

     

    The Court:        Doing what?

     

    Defense:           He=s using the things I know to support guilt or something, and I don=t know.

     

    The Court:        All right.  Overruled.

     

    Prosecutor:       There=s other things that go on here.  What about this business?  Mrs. Barajas confides first in Ms. Ortega.  Ms. Barajas was not this gung-ho lady that said, >I=m going to report this to the police, report this thing to have him arrested.  I hate him.  I hate him two years ago.  He=s gone, but I still want to go after him.=  Is it consistent she would go talk to Ms. Ortega about it first?  No.  That supports the truth.

     

    Appellant contends that the State was, in effect, arguing that Appellant=s counsel knew Aof other things@ left undefined to the jury, which supported a verdict of guilt against Appellant.  The jury, Appellant asserts, was left to speculate as to the existence of other damaging evidence that Appellant=s counsel Aknew@ would support a finding of guilt against his client.

    There are four permissible areas of jury argument:  (1) summation of evidence; (2) reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) pleas for law enforcement.  Allridge v. State, 762 S.W.2d 146, 155 (Tex.Crim.App. 1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989); Ulloa v. State, 901 S.W.2d 507, 514-15 (Tex.App.--El Paso 1995, pet. ref=d).  In determining the propriety of the State=s argument, we consider it in light of the facts adduced at trial and in the context of the entire argument.  McGee v. State, 774 S.W.2d 229, 239 (Tex.Crim.App. 1989), cert. denied, 494 U.S. 1060, 110 S.Ct. 1535, 108 L.Ed.2d 774 (1990); Mosley v. State, 686 S.W.2d 180, 183 (Tex.Crim.App. 1985).  To constitute reversible error, the argument must be extreme, manifestly improper, violative of a mandatory statute, or inject new and harmful facts into evidence.  Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000), cert. denied, 532 U.S. 944, 121 S.Ct.1407, 149 L.Ed.2d. 349 (2001); Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App. 1988).

    During closing argument, defense counsel argued that the State=s witnesses gave inconsistent versions of C.B.=s allegations, thereby calling into doubt the veracity of C.B.=s allegations.  Specifically, Defense counsel stated, AAnd I would ask you to ask Mr. Rosales [prosecutor], in your minds, of course, which is it?  Did all of these inconsistencies come from the mind of the police officers and the social workers, and were they adding to these allegations?  And if so, how do we know what was added and which parts of that to believe?  Or was it that the child gave very different stories to the doctor, to the social worker to the police, or whatever, about what happened?  Ask Mr. Rosales to resolve that for you.@ Defense counsel also attacked C.B.=s credibility, arguing that C.B.=s testimony had been rehearsed and suggesting that her allegations had been fabricated.  Pointing to inconsistencies in the State=s witnesses= accounts of C.B.=s outcry, defense counsel asserted during closing argument that one or more witnesses were lying.  Defense counsel also suggested that Mrs. Barajas and her daughter were lying because they held ill will towards Appellant.

    In the State=s closing argument, the prosecutor responded to the defense=s theory that either Ms. Barajas and C.B. were both lying or C.B. had made up the allegations alone.  The prosecutor discussed the facts to which both witnesses consistently testified, arguing at length that defense counsel=s tactics and questions were meant to make it seem like the State=s witnesses were lying though other evidence suggested otherwise.  In its proper context, the State=s statement that Ahe knows that other things exist which only support the truth@ was a reasonable answer to defense counsel=s statements during its closing argument. A prosecuting attorney is permitted in his argument to draw from the facts in evidence all inferences which are reasonable, fair, and legitimate, but he may not use the jury argument to get before the jury, either directly or indirectly, evidence which is outside the record.  Borjan v. State, 787 S.W.2d 53, 57 (Tex.Crim.App. 1990), citing Jordan v. State, 646 S.W.2d 946, 948 (Tex.Crim.App. 1983).  In light of the entire argument, it is clear that the State was making reference to Aother@ evidence already before the jury, which controverted or supported a different inference than defense counsel=s theory that the State=s witnesses were lying or at the least, not credible.  Even assuming that the prosecutor=s jury argument was improper, the complained-of argument fails to rise to the level of reversible error as it was not manifestly improper nor did it inject new and harmful facts into evidence.  See Wesbrook, 29 S.W.3d at 115. Moreover, in view of the entire argument, the complained-of argument would not have caused the jury to speculate as to the existence of Aother damaging@ evidence.  We overrule Issues Twenty-Two through Twenty-Five.

     

     

    Having overruled all of Appellant=s issues for review, we affirm the trial court=s

    judgment.

     

     

    July 17, 2003

    DAVID WELLINGTON CHEW, Justice

     

    Before Panel No. 1

    Larsen, McClure, and Chew, JJ.

     

    (Do Not Publish)


    [1] The first time Appellant Jose Barajas= appeal of his conviction was before this Court, we sustained Appellant=s first three issues for review without addressing his remaining issues.  We need not address Appellant=s fourth issue on appeal as it pertains to the trial court=s ruling on improper questioning of the venire members, which the Court of Criminal Appeals found not to be an abuse of discretion.  Issue Four is overruled.  The Court of Criminal Appeals has overruled Appellant=s Issues One through Three.  Therefore, we now consider Appellant=s remaining twenty-one issues for review.

    [2]Appellant appeals under both the Texas and United States Constitutions, but fails to point out any distinction between the confrontation clauses of the federal and Texas Constitutions.  See Lagrone v. State, 942 S.W.2d 602, 612 (Tex.Crim.App. 1997), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997).  We therefore consider Appellant=s state and federal claims in a joint analysis without distinction.

    [3]The State in this cause had filed a motion in limine, requesting that defense counsel inter alia approach the bench before mentioning or alluding to proceedings involving Appellant and Nancy Barajas in front of the jury.  The trial court granted the State=s motion, therefore defense counsel was requesting permission to cross-examine the State=s witnesses about the divorce and child support litigation proceedings pursuant to the court=s order. 

    [4]We observe the trial court did not expressly restrict cross-examination on relevancy grounds, though the trial judge did question whether cross-examination concerning the divorce proceedings was necessary and remarked that the divorce itself had nothing to do with C.B.=s outcry under one of defense counsel=s theory.  A review of the record shows that the trial court apparently based its ultimate decision on Texas Rule of Criminal Evidence 403, after balancing the prejudicial nature and probative value of the proffered testimony. 

    [5] At the time of Appellant=s trial in September 1997, the Texas Rules of Criminal Evidence applied.  Effective March 1, 1998, the Texas Rules of Criminal Evidence and Texas Rules of Civil Evidence were merged to form the Texas Rules of Evidence.  Rule 403 of the Rules of Evidence is the same as former Rule 403 of the Rules of Criminal Evidence.  Thus, the scope and application of the new rule would be the same as under the old one.  Nevertheless, we will apply the former Texas Rules of Criminal Evidence since this case was tried before the effective date of the new rules.

    [6] Former Rule 803(5) of the Texas Rules of Criminal Evidence provided a hearsay exception for:

     

    A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document=s trustworthiness.  If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. 

    [7] Former Rule 405(a) of the Texas Rules of Criminal Evidence provided in pertinent part:

     

    In all cases in which evidence of character or trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.  Provided however that to be qualified to testify concerning the character or trait of character of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense.

     

    See Tex.R.Crim.Evid. 405(a)(Repealed).  The merger of the rules of evidence in civil and criminal cases did not result in a substantive change to character evidence offered in the guilt-innocence stage, however, we will apply Rule 405(a) of the Texas Rules of Criminal Evidence since Appellant=s case was tried before the consolidated rules of evidences went into effect.

    [8]Former Rule of Criminal Evidence 403 contains identical language as Rule of Evidence 403, however, we will refer to the former rule in addressing Appellant=s argument because his case was tried prior to the consolidation of the Rules of Evidence. 

    [9]Apparently, this was a reference to a prospective juror who during voir dire could not remember certain details about the day he graduated from college.  The prosecutor had earlier recalled to the jury the State=s remark during voir dire that Mr. Martin=s failure to remember all the small details from an event years ago did not mean he was lying.