                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


  JOSE VALDEZ-MARTINEZ,                           §
                                                                  No. 08-17-00193-CR
                                   Appellant,     §
  v.                                                                Appeal from the
                                                  §
  THE STATE OF TEXAS,                                             171st District Court
                                                  §
                                   Appellee.                    of El Paso County, Texas
                                                  §
                                                                  (TC# 20160D03097)
                                                  §

                                MEMORANDUM OPINION

       Appellant Jose Valdez-Martinez was convicted on two counts of indecency with a child by

engaging in sexual contact. See TEX.PENAL CODE ANN. § 21.11(a)(1). He was sentenced to three

years in prison. Two issues have been raised on appeal. First, Appellant challenges two separate

evidentiary rulings, both sustaining hearsay objections. Second, he contends that the State

improperly sought to shift its burden of proof. We affirm.

       The complainant was around seven years old at the time of two incidents of indecent sexual

contact by Appellant. She was in high school at the time of her outcry and at the time of trial.

Because there is no challenge to the sufficiency of the evidence to support the convictions, and in

the interest of protecting the identities of the implicated minors, we limit our discussion of the
factual and procedural background of this appeal to the information necessary to analyze the

discrete issues raised about various trial rulings.

    I.      Rule 803(3) hearsay exception for statement of declarant’s state of mind

         Appellant challenges two evidentiary rulings, each sustaining hearsay objections. In each

instance, Appellant invoked Rule 803(3)—an exception to the hearsay rule for a statement of a

declarant’s then-existing mental, emotional, or physical condition—to justify the admission of

evidence of a speaker’s state of mind. First, on cross-examination Appellant attempted to elicit

from the complainant’s mother testimony that when she learned from a Child Protective Services

worker about the complainant’s outcry relating to Appellant, she also learned that the complainant

made a separate outcry implicating another person. Later, defense counsel attempted to elicit from

Appellant’s daughter evidence about untruthful statements made by the complainant, as examples

supporting testimony that the complainant had a reputation as an untruthful person.

         “Hearsay” is a statement that “(1) the declarant does not make while testifying at the current

trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the

statement.” TEX.R.EVID. 801(d). Hearsay is generally inadmissible unless otherwise provided by

statute or the Rules of Evidence. See TEX.R.EVID. 802. The exception relied upon by Appellant

in this appeal applies to:

         Then-Existing Mental, Emotional, or Physical Condition. A statement of the
         declarant’s then-existing state of mind (such as motive, intent, or plan) or
         emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
         health), but not including a statement of memory or belief to prove the fact
         remembered or believed unless it relates to the validity or terms of the declarant’s
         will.




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TEX.R.EVID. 803(3). We generally review evidentiary rulings for abuse of discretion, and we will

not find error in an evidentiary ruling unless it was outside the zone of reasonable disagreement.

See, e.g., De La Paz v. State, 279 S.W.3d 336, 343-44 (Tex.Crim.App. 2009).

           a. Separate outcry

       Outside the presence of the jury, defense counsel elicited from the complainant’s mother

proposed testimony that while receiving in-patient counseling at University Behavioral Health

Center (UBH), in addition to an outcry against Appellant, the complainant also made a separate

outcry that accused another person of sexual abuse. The mother confirmed that she learned of both

outcry statements in the same phone call she received “from CPS.” The mother was not present

at the time the complainant made her outcries to a therapist at UBH, and she did not know any

details relating to the other outcry. The State objected to the proposed testimony based on

irrelevance, hearsay, and unfair prejudice. The trial sustained the hearsay objection.

       Appellant contends that the mother’s testimony was admissible as evidence of the

complainant’s state of mind, pursuant to the hearsay exception in Rule 803(3). But that exception

“applies only to a statement of the declarant,” and it “‘does not authorize receipt of a statement by

one person as proof of another’s state of mind.’” 2 Steven Goode & Olin Guy Wellborn III, Texas

Practice: Guide to the Texas Rules of Evidence § 803.6 (4th ed. 2019)(quoting Hong v. Children’s

Mem’l Hosp., 993 F.2d 1257, 1265 (7th Cir. 1993)). The witness—complainant’s mother—had

never discussed the separate outcry with the complainant, she only learned of it from the CPS

worker. For purposes of the hearsay exception, the declarant was the CPS worker, not the

complainant. As such, Rule 803(3) did not provide a basis for admitting double-hearsay about

what the complainant told the CPS worker, who then told the complainant’s mother. Moreover,



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as observed by the trial judge, the same information could be (and ultimately was) elicited directly

from the complainant herself. See TEX.R.APP.P. 44.2(b).

           b. Extrinsic evidence of complainant’s untruthfulness

       As part of Appellant’s case-in-chief, he called his daughter, L.V., to testify in his defense.

L.V. had known the complainant her entire life, and she testified that the complainant had a

reputation for being “untruthful.” See TEX.R.EVID. 608(a)(witness’s credibility may be attacked

by testimony about the witness’s reputation for having a character for untruthfulness); see also

TEX.R.EVID. 608(b)(“a party may not inquire into or offer extrinsic evidence to prove specific

instances of the witness’s conduct in order to attack or support the witness’s character for

truthfulness”). Defense counsel then asked L.V. to provide an example of the complainant’s

untruthfulness. The witness testified that when she and the complainant were “around twelve,”

the complainant told her “a whole story about how she met this guy at the park, that they were

dating.” According to L.V., the complainant “went on with the story for about . . . four months,”

but then a “couple of months later” she admitted she had been lying about it.

       Defense counsel then asked: “What kind of things did she tell you, her, and her boyfriend

did?” The State objected on the ground of hearsay, and defense counsel responded that it “goes to

the state of mind,” again invoking Rule 803(3). The trial court sustained the hearsay objection.

       In the trial court, Appellant did not argue that the hearsay rule did not apply, but instead

argued for application of the Rule 803(3) exception because the complainant’s “state of mind”

justified eliciting evidence of what complainant, at age twelve, falsely claimed she and her fictious

boyfriend “did.” Similarly on appeal, Appellant contends that an exception to the hearsay rule

applied, and because the trial court sustained the hearsay objection, the jury “never heard from the

witness examples of the many times [the complainant] would make-up sexual situations or make-
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up boyfriends for purposes of getting attention,” thus limiting his ability to demonstrate the

complainant’s “motive and state of mind.”

         Among other arguments, the State notes that Appellant made no offer of proof concerning

the substance of the excluded evidence. To preserve error in a ruling to exclude evidence, the

party must inform the court of its substance by an offer of proof, unless the substance was apparent

from the context. See TEX.R.EVID. 103(a); Holmes v. State, 323 S.W.3d 163, 168 (Tex.Crim.App.

2009)(primary purpose of the offer of proof is to enable an appellate court to determine whether

the exclusion was erroneous and harmful; secondary purpose is to permit the trial judge to

reconsider the ruling in light of actual evidence). There was no formal offer of proof about how

Appellant’s daughter would have answered the question, nor any context to suggest that the answer

involved made-up “sexual situations . . . for purposes of getting attention.” We conclude that

Appellant did not preserve error by presenting a record to establish that his substantial rights were

harmed by the exclusion of evidence that the complainant, at age twelve, lied about sexual

engagements      with    fictitious   boyfriends   to       seek   attention.   TEX.R.EVID. 103(a);

TEX.R.APP.P. 44.2(b). Accordingly, we overrule Appellant’s first issue.

   II.      Impermissible burden-shifting

         In his second issue, Appellant contends that the State impermissibly attempted to shift the

burden of proof through its cross-examination of a witness. Appellant’s wife was called as part of

the defense case, and on direct examination she testified that she never spoke to the police about

the criminal allegations against her husband, and that the police never asked her or their daughter

about it. On cross-examination, the prosecutor asked whether the witness had called the police to

ask them to take a statement from her daughter. She said she had not done so. The prosecutor

then began to ask whether she thought “that would have been helpful, to further exonerate, to show
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the --.” Defense counsel objected to the relevance of the question, which the trial court sustained.

Counsel then asked that the jury be instructed to disregard the question, and the trial court

complied.

        The prosecutor then asked for “a little bit of leeway in that realm,” arguing that the witness

had “opened up that door,” and if she or her daughter “wanted to give statements at the time,

they’re free people. They could have called the cops and said, we want to give a statement.”

Defense counsel again objected, this time stating that the prosecutor was “shifting the burden.”

Counsel argued that “[i]t is not a private citizen’s responsibility to know what the police are

investigating.” She further argued that the prosecutor had “made a speaking objection, in front of

this jury, shifting the burden. It is not [the witness’s] responsibility to exonerate a person who is

innocent until prove[n] guilty.” The trial court sustained Appellant’s objection. After a conference

at the bench, the judge instructed the jury to disregard the prosecutor’s remarks, reminding them

that “the burden has always been, and still remains, on the State.”

        On appeal, Appellant argues that the trial court abused its discretion and failed to “cure the

error created by the State when it shifted the burden of proof” to him. Among other arguments,

the State argues that Appellant failed to preserve error by pursuing his objection to an adverse

ruling. The trial judge sustained Appellant’s objections and gave all requested instructions for the

jury to disregard the prosecutor’s statements; accordingly, Appellant received all the relief he

requested at trial.

        To preserve error for appellate review, the record must show not only that a complaint was

made to the trial court by timely objection, but also that the trial court ruled on the request (or

refused to do so). See TEX.R.APP.P. 33.1(a). Critically, the objection must be pursued to an

adverse ruling, otherwise there is nothing to appeal. “The essential requirement is a timely,
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specific request that the trial court refuses.” Young v. State, 137 S.W.3d 65, 69 (Tex.Crim.App.

2004).

         Appellant did not request a mistrial after the trial court sustained his objections and

instructed the jury to disregard the prosecutor’s comments. See id. (“the traditional and preferred

procedure for a party to voice its complaint has been . . . (1) to object when it is possible, (2) to

request an instruction to disregard if the prejudicial event has occurred, and (3) to move for a

mistrial if a party thinks an instruction to disregard was not sufficient”). And although Appellant’s

brief also references the denial of a motion for new trial, that motion did not re-urge the specific

issue relating to the prosecutor’s purported burden shifting. Accordingly, we conclude that

Appellant failed to preserve error, and we overrule his second issue.

                                            Conclusion

         We affirm the judgment of conviction.



September 25, 2019
                                      MICHAEL MASSENGALE, Former Justice

Before Rodriguez, J., Palafox, J., and Massengale, Former Justice
Massengale, Former Justice (Sitting by Assignment)

(Do Not Publish)




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