                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-18-00096-CR
                                    No. 07-18-00097-CR


                         JEREME LEE ESCOBEDO, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                         On Appeal from the 222nd District Court
                                Deaf Smith County, Texas
      Trial Court No. CR-18A-001 Counts I and II, Honorable Roland D. Saul, Presiding

                                      March 6, 2019

                             MEMORANDUM OPINION
                    Before QUINN, C.J., and CAMPBELL and PARKER, JJ.


       Appellant Jereme Lee Escobedo appeals his two convictions by jury of the felony

offense of sexual assault of a child1 and the resulting life sentence.2 Appellant’s two

issues challenge the trial court’s exclusion of evidence he offered at trial. We will affirm.



       1   TEX. PENAL CODE ANN. § 22.011 (West 2018).
       2This is a first-degree felony punishable by imprisonment for life or for any term of
not more than 99 years or less than 5 years and a fine not to exceed $10,000. TEX. PENAL
CODE ANN. § 22.011 (West 2018); TEX. PENAL CODE ANN. § 12.32 (West 2018); TEX. PENAL
CODE ANN. § 12.42 (West 2018).
                                          Background


         Because appellant does not challenge the sufficiency of the evidence to support

his convictions, we set forth only those facts necessary to a disposition of his appellate

issues. TEX. R. APP. P. 47.1.


         Appellant was indicted by two counts of sexual assault of his daughter, B.E., a

child under the age of 17. After his not-guilty plea, the jury heard testimony from B.E.,

from medical professionals, and from appellant. B.E. described an instance in which

appellant touched her body in several places, also putting his mouth on her “middle part”

and her “boobs.” She further told the jury appellant penetrated her vaginally with his

penis.     Appellant denied this conduct.      A medical professional testified that tests

performed on appellant and B.E. indicated both were infected with the sexually

transmitted disease chlamydia.        Documentation of these results was admitted into

evidence.


         During trial, appellant proffered evidence of B.E.’s sexual conduct with her

boyfriend to rebut the State’s evidence of the positive chlamydia tests. After an in camera

hearing, the trial court denied his proffer, finding the evidence to be inadmissible hearsay

and more prejudicial than probative.


                                               Analysis


Admissibility of Evidence Under Rule of Evidence 412


         Appellant’s first issue contests the trial court’s exclusion of his evidence of B.E.’s

sexual conduct with her boyfriend. The State’s medical evidence that appellant and B.E.

tested positive for chlamydia supported the contention that the two had shared sexual

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contact. Because the State relied on this medical evidence, appellant argues, he should

have been allowed to rebut it with his own testimony that B.E. told him she had sex with

her boyfriend at a time prior to the medical testing. He contends that once the evidence

of the positive chlamydia tests was admitted, the probative value of evidence showing

that B.E. could have contracted the disease from someone other than appellant became

“crucial” to his defense and the trial court’s exclusion of his testimony on that point denied

him a defense to the charges against him.


       We apply an abuse of discretion standard when reviewing issues relating to the

trial court’s admission of evidence. Page v. State, 213 S.W.3d 332, 337 (Tex. Crim. App.

2006) (citation omitted). The State argues the trial court did not abuse its discretion, for

several reasons. We agree the trial court did not abuse its discretion. “If the ruling was

correct on any theory of law applicable to the case, in light of what was before the trial

court at the time the ruling was made, then we must uphold the judgment.” Id. Appellate

courts will uphold a trial court’s ruling on the admissibility of evidence as long as the trial

court’s ruling was at least within the “zone of reasonable disagreement.” Id. (citing

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g)).


       In a sexual assault case, opinion or reputation evidence of a victim’s past sexual

behavior is not admissible. Alford v. State, 495 S.W.3d 63, 66-67 (Tex. App.—Houston

[14th Dist.] 2016, pet. ref’d) (citing TEX. R. EVID. 412(a)). Evidence of specific instances

of the victim’s previous sexual conduct may be admitted in certain enumerated

circumstances; those include when the evidence is necessary to rebut or explain scientific

or medical evidence offered by the prosecution. Id. (citing TEX. R. EVID. 412(b)(2)(A)).

However, the probative value of that evidence must outweigh the danger of unfair


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prejudice. Id. (citing TEX. R. EVID. 412(b)(3)). Evidence of the sexual history of a victim

is to be highly scrutinized for its probative value. Cofer v. State, No. 07-04-0383-CR,

2005 Tex. App. LEXIS 10586, at *5 (Tex. App.—Amarillo Dec. 21, 2005, no pet.) (citing

Allen v. State, 700 S.W.2d 924, 929 (Tex. Crim. App. 1985); Burks v. State, 40 S.W.3d

698, 699 (Tex. App.—Waco 2001, pet. ref’d)).


       Under Rule 412(b)(3), the proponent of the evidence bears the burden to show the

probative value of the evidence outweighs the unfair prejudice of admitting it. Stephens

v. State, 978 S.W.2d 728, 733 (Tex. App.—Austin 1998, pet ref’d). The balancing test

under rule 412(b)(3) “weighs against the admissibility of evidence.” Id. (citation omitted).

Here, the State’s evidence showed both B.E. and appellant had positive tests for

chlamydia. The tests also showed neither had any other sexually transmitted disease.


       We agree with the State that appellant’s proffered testimony had little probative

value to rebut the inference of his shared sexual contact with B.E., because the testimony

included no reason to believe the boyfriend was infected with chlamydia. Without some

indication of a connection between the boyfriend and the sexually-transmitted disease,

appellant’s testimony merely would have invited speculation regarding his role in her

infection. Moreover, even if the boyfriend had been shown to be infected with the STD,

the evidence he and B.E. had sex would do nothing to explain, or rebut, the inferences to

be drawn from appellant’s infection with the same disease.3 It certainly would not prove

appellant did not sexually assault B.E.




       3This factor distinguishes this case from the three cases appellant cites. See Miles
v. State, 61 S.W.3d 682 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d); Reynolds v.
State, 890 S.W.2d 156 (Tex. App.—Texarkana 1994, no pet.); Hood v. State, 944 S.W.2d
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       Other courts have affirmed exclusion of comparable evidence when the evidence

did not explain or rebut medical evidence and did not rebut the charge against the

defendant. See Alford, 495 S.W.3d at 66-67 (trial court did not err when evidence that

victim was sexually active during time of alleged abuse did not explain how or when the

victim sustained a hymen tear and did not rebut the specific charge against appellant)

(citations omitted); Kennedy v. State, 184 S.W.3d 309, 314-15 (Tex. App.—Texarkana

2005, pet. ref’d) (trial court did not err by excluding evidence that failed to rebut or explain

medical evidence offered by the State).


       Given the proffer’s low probative value, the trial court acted within its discretion to

find the probative value of appellant’s proffered evidence did not outweigh the prejudice

of admitting it. See Alford, 495 S.W.3d at 67 (“[a]ny probative value in explaining that

single piece of medical evidence does not outweigh the danger of unfair prejudice

inherent in introducing a complainant’s past sexual behavior.”); Montgomery v. State, 415

S.W.3d 580, 584 (Tex. App.—Amarillo, 2013 pet. ref’d) (“Rule 412 strives to balance a

defendant’s right to defend himself against the need to protect victims from undue public

humiliation and ridicule”) (citation omitted).


       We note also that even when evidence meets the criteria set forth in Rule 412, it

may still be inadmissible hearsay. Burks, 40 S.W.3d at 701; Miles, 61 S.W.3d at 687.

Hearsay means a statement that “the declarant does not make while testifying at the

current trial or hearing” and that “a party offers in evidence to prove the truth of the matter

asserted in the statement.” TEX. R. EVID. 801. Hearsay statements are inadmissible




743 (Tex. App.—Amarillo 1997, no pet.). In those cases, the proffered evidence gave an
alternative explanation for the State’s medical evidence, rebutting the State’s theory.
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unless another statute or rule provides otherwise. TEX. R. EVID. 802. In Burks, the court

stated that “Rule 412 does not provide . . . a vehicle to overcome the exclusion of

inadmissible hearsay evidence.” Burks, 61 S.W.3d at 687 (citation omitted).


      Here, appellant sought to testify that B.E. told him that she had sex with her

boyfriend at a time prior to her medical testing for sexually transmitted diseases. This

evidence was a statement by B.E. made outside the trial or hearing and was offered for

the truth of the matter asserted. It was hearsay. Burks, 61 S.W.3d at 700; TEX. R. EVID.

802. We agree with the State the court’s ruling was correct for that reason also. The

cases cited by appellant do not lead us to a contrary conclusion.


      For these reasons, we resolve appellant’s first issue against him.


Rule of Evidence 412 Hearing Procedure


      In appellant’s second issue, he argues the trial court should have allowed both his

testimony and that of B.E. during the in camera Rule 412 hearing. Rule 412(c) provides

in part that “[b]efore offering any evidence of the victim’s past sexual behavior, the

defendant must inform the court outside the jury’s presence. The court must then conduct

an in camera hearing, recorded by a court reporter, and determine whether the proposed

evidence is admissible.” The Court of Criminal Appeals has found that “the in camera

proceeding contemplated by Rule 412 is an adversarial hearing at which the parties are

present and the attorneys are permitted to question witnesses.” LaPointe v. State, 225

S.W.3d 513, 523-24 (Tex. Crim. App. 2007), cert. denied, 552 U.S. 1015 (2007).




                                            6
        The following exchange took place during the Rule 412 hearing:


        Defense Counsel: I would like to put on evidence, ask [appellant] about the
        Friday evening movies and the young man that was disclosed in the
        testimony. He would be able to testify – [appellant] would be able to testify
        that [B.E.] admitted to him to having sex with this young man when she was
        supposed to be at the movies . . . the Defense argument could be, “Well,
        she could’ve gotten chlamydia from this young man.” That is the long and
        the short of what the evidence is that the State -- or the Defense would try
        to put on.
        State: Your Honor, that would be hearsay. I mean, he can’t repeat what
        [B.E] said.
        The Court: That’s true.
        Defense Counsel: Well, that’s what – that’s what [appellant] would like to
        do. That’s what – I’m trying to facilitate his wishes.
        The Court: All right. So you’re saying that the only evidence that would
        indicate that she might have gotten the sexually-transmitted disease from
        someone else is the testimony by your client that the victim told him that
        she had had sex with another young man prior to taking the test.
        Defense Counsel: Yes, that is pretty close.
        The Court: Because it is strictly hearsay and also because I find that the
        probative value of the evidence does not outweigh the danger of unfair
        prejudice and because really there’s no other evidence to back it up, I do
        find that that is not admissible. All right—anything else?
        Defense Counsel: No, Your Honor.


        The trial court followed the procedure outlined in Rule 412(c). It held an in camera

hearing, recorded by a court reporter, and permitted the parties an opportunity to offer

evidence and question witnesses. Unlike the situation in LaPointe, 225 S.W.3d at 515,

on which appellant relies, both counsel and appellant were present at the 412 hearing.

At no time did appellant request that the trial court allow appellant or B.E. to testify to facts

pertinent to the hearing. And, at no time did appellant object to the trial court’s procedure

or its ruling.


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       To preserve a complaint for appellate review, a party must present a timely

request, objection, or motion to the trial court stating specific grounds for the desired ruling

unless the specific grounds are apparent from the context. See TEX. R. APP. P. 33.1(a).

See also TEX. R. EVID. 103(a)(1).        The purpose of requiring specificity serves two

purposes: (1) to inform the trial court of the basis of the objection and give the court an

opportunity to rule on it; and (2) to give the opposing party the chance to respond to the

complaint. Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009) (citation

omitted). Appellant did not advance an objection of any kind to the Rule 412 hearing. He

has not preserved his issue for our review, and we overrule it.


                                         Conclusion


       Having resolved each of appellant’s issues against him, we affirm the judgments

of the trial court.


                                                           James T. Campbell
                                                              Justice


Do not publish.




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