Opinion issued April 7, 2016




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-15-00118-CR
                            ———————————
            SANTOS AQUILEO CRUZ-ESCALANTE, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


                    On Appeal from the 185th District Court
                            Harris County, Texas
                        Trial Court Case No. 1311655


                                   OPINION

      A jury found appellant, Santos Aquileo Cruz-Escalante, guilty of the offense

of aggravated sexual assault of a child,1 and the trial court assessed his punishment




1
      See TEX. PENAL CODE ANN. § 22.021(a)(1)(B)(i) (Vernon Supp. 2015).
at confinement for twenty years. In his sole issue, appellant contends that the trial

court erred in limiting his cross-examination of one of the State’s witnesses, thereby

denying him the right to present a defense.2

      We affirm.

                                     Background

      The complainant testified that during the summer after her kindergarten year

of school, she, while out riding her bicycle, stopped to help appellant “clean his car.”

When he asked her whether she wanted a soda, she responded “yes.” Appellant then

“took [her] to go upstairs,” “told [her] to take off [her] pants,” “made [her] lay

down,” and then “put his middle part inside of [her] middle part.” The complainant

identified her “middle part” as “the vagina” and appellant’s “middle part” as “the

male sexual organ, the penis.” She explained that appellant was “on top of [her],”

she was “facing up at the ceiling,” and it “hurt.” The complainant then “told

[appellant] that [her] mom was calling [her],” “pulled [her] pants up,” and left.

      The complainant explained that when she got home she did not tell her mother

or grandmother about what had happened because she was scared and “didn’t want

to get in trouble.” Later, while she visiting her father in New York, she told her

sister and father “somebody did something bad” to her.




2
      See U.S. CONST. amends. VI, XIV.

                                           2
      Teresa Santos, a licensed clinical social worker, testified that during the

summer of 2010, she served as “[a] forensic interviewer at the child advocacy center

at [the] Montefiore Medical Center” in New York. On July 12, 2010, she met with

the complainant, who was six years old at the time. The complainant discussed with

Santos events that had occurred earlier that summer in Houston, Texas, “around the

time school ended.” The complainant told her that while “she was outside riding her

bicycle,” a man “offered her a soda.” However, the man “tricked” her and took her

to “his living room” “[i]n his apartment.” The man then “pulled [her] shorts down

and [her] panties down,” “put [her] down” on the ground, and “put his wiener in

[her] butt.” Santos noted that the complainant identified “the male sexual organ” as

his “wiener” and both her “butt” and “bottom” as her anus. The complainant

explained that at “[f]irst it was soft, then it was hard” and “felt bad.” She also told

Santos that the man “touched [her] on [her] bottom.” In order to “get out” of the

man’s apartment, the complainant told him that her mom was calling her, and “he

let [her] go.” The complainant identified the man as “Santos” and explained that

“[h]e lived in the same [apartment] buildings” that she lived in.

      The complainant’s father testified that the complainant was six years old when

she visited him in New York in July 2010. He explained that while she was visiting,

“[s]he told [him] about a man named Santos that was a friend of her mother’s . . . that

took her upstairs . . . to give her candy . . . . And he told her that it was not going to



                                            3
hurt and he did what he had to do.” When her father asked her what the man did,

the complainant told him that the man “took her from behind, that he turned her

around and took her from behind. And that’s when she felt pain.” More specifically,

the complainant told him that the man “put his private on her” and “his private

touched” “her front and behind” “[p]rivate parts.” To get away, the complainant

“told [the man] that her mother was calling her.” She identified the man by his name,

“Santos,” and said that he was a “neighbor.”

      Houston Police Department (“HPD”) Officer K. Estrada, assigned to HPD’s

juvenile division sex crimes unit in 2010, testified that she handled the complainant’s

case. According to Estrada, the complainant, during her forensic interview in New

York, gave appellant’s first name and stated “where he was living.” Later, after the

complainant returned to Houston, she identified appellant in a photographic array

prepared by Estrada. Estrada explained that during her investigation of the case, “it

was discovered that [the complainant] had [genital] warts on her anus.” Although

Estrada was unable to “connect [appellant’s] DNA with [the complainant]” and he

denied “all . . . criminal conduct,” he did admit to knowing the complainant.

      Linda Cahill, a pediatrician at the child advocacy center at Montefiore

Medical Center in New York, testified that while examining the complainant, she

saw “lesions on [her] anus consistent with ano-genital warts”—a “common”

sexually-transmitted disease, which can be transmitted either through the birth canal



                                          4
during birth or “through direct sexual contact” with another person. Because the

complainant did not “manifest[] . . . warts” until six years of age, Cahill opined that

she “acquired” the sexually-transmitted disease “after birth” “through direct sexual

contact” with another person. Cahill also opined that the complainant is a victim of

sexual abuse.

      The complainant’s mother testified that she did not have any “warts” or

“sexually transmitted diseases at the time [she] gave birth to [the complainant].”

And she explained that the complainant did not have any sexually-transmitted

diseases or “warts” “before the summer of 2010.”

                                Standard of Review

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);

Tarley v. State, 420 S.W.3d 204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d). Likewise, we review a trial court’s decision to limit cross-examination under

an abuse-of-discretion standard. Mims v. State, 434 S.W.3d 265, 271 (Tex. App.—

Houston [1st Dist.] 2014, no pet.); Ho v. State, 171 S.W.3d 295, 304 (Tex. App.—

Houston [14th Dist.] 2005, pet. ref’d). A trial court abuses its discretion if its

decision is “so clearly wrong as to lie outside the zone within which reasonable

people might disagree.” Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App.

2008); see also Tarley, 420 S.W.3d at 206.



                                          5
                                 Cross-Examination

      In his sole issue, appellant argues that the trial court erred in limiting his cross-

examination of the complainant’s father, a State’s witness, regarding “a custody

battle between the complainant’s parents” because it deprived him of his right to

present a defense.3

      The United States Constitution guarantees a defendant a meaningful

opportunity to present a complete defense and the right to cross-examine witnesses.

U.S. CONST. amends. VI, XIV; see also Crane v. Kentucky, 476 U.S. 683, 690, 106

S. Ct. 2142, 2146 (1986); Delaware v. Van Arsdall, 475 U.S. 673, 678–79, 106 S.

Ct. 1431, 1435 (1986); Carroll v. State, 916 S.W.2d 494, 496–98 (Tex. Crim. App.


3
      We note that the State, in its brief, asserts that appellant has not preserved this
      complaint for appellate review. On appeal, “there is a distinction between [a]
      situation where [a] defendant desires to elicit certain, specific responses from a
      State’s witness but is precluded from doing so” and a situation “where [a] defendant
      is not permitted to question a State’s witness about a certain general subject that
      might affect the witness’s credibility.” Virts v. State, 739 S.W.2d 25, 29 (Tex. Crim.
      App. 1987). To preserve error when the trial court excludes certain, specific
      responses, “it is incumbent upon the defendant to either” have the witness answer
      the questions on the record or “make an offer of proof of the questions he would
      have asked and the answers he might have received had he been permitted to
      question the witness in the presence of the jury.” Koehler v. State, 679 S.W.2d 6, 9
      (Tex. Crim. App. 1984). In contrast, when a trial court deprives a defendant of the
      opportunity to cross-examine a witness on a subject affecting the credibility of the
      witness, the defendant “must merely establish what subject matter he desired to
      examine the witness about during the cross-examination.” Id. Here, due to our
      disposition of appellant’s sole point of error, we need not address whether appellant
      has preserved his complaint for our review. See TEX. R. APP. P. 47.1; see also
      Montgomery v. State, 383 S.W.3d 722, 728–29 (Tex. App.—Houston [14th Dist.]
      2012, no pet.) (declining to address whether defendant preserved complaint
      regarding trial court’s alleged improper limitation of cross-examination of witness).


                                            6
1996).    However, although a defendant’s right to confrontation and cross-

examination is constitutionally safeguarded, it is not absolute. See Van Arsdall, 475

U.S. at 678–79, 106 S. Ct. at 1435; Chambers v. Mississippi, 410 U.S. 284, 295, 93

S. Ct. 1038, 1046 (1973).

      A defendant may cross-examine a witness on any subject reasonably

calculated to attack his credibility, such as exposing a motive, bias, or interest. See

TEX. R. EVID. 611(b); see also Carroll, 916 S.W.2d at 497–98; Carpenter v. State,

979 S.W.2d 633, 634 (Tex. Crim. App. 1998) (exposing witness’s motivation to

testify for or against defendant proper and important purpose of cross-examination).

However, a trial court is afforded “considerable discretion in determining how and

when bias may be proved, and what collateral evidence is material for that purpose.”

Recer v. State, 821 S.W.2d 715, 717 (Tex. App.—Houston [14th Dist.] 1991, no

pet.); see also Virts v. State, 739 S.W.2d 25, 28 (Tex. Crim. App. 1987) (“The trial

judge retains wide latitude to impose reasonable limits on cross-examination . . . .”).

For instance, a trial court has the discretion to limit the scope of cross examination

“to avoid . . . harassment, prejudice, confusion of the issues, endangering the

witness, and the injection of cumulative or collateral evidence.” Lagrone v. State,

942 S.W.2d 602, 613 (Tex. Crim. App. 1997); see also Van Arsdall, 475 U.S. at 679,

106 S. Ct. at 1435 (“[T]rial judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-examination based



                                          7
on concerns about, among other things, harassment, prejudice, confusion of the

issues, the witness’ safety, or interrogation that is repetitive or only marginally

relevant.”).

      In his brief, appellant appears to argue that the trial court’s error in limiting

his cross-examination of the complainant’s father was constitutional error because

evidence regarding the “custody battle” between the complainant’s parents could

have shown “motive for [the complainant’s father’s] testimony and the allegations

[made] against [a]ppellant.” For purposes of our analysis, we will assume that

appellant is correct that the alleged error in this case is constitutional error. See TEX.

R. APP. P. 44.2(a); see also Clark v. State, 365 S.W.3d 333, 340 (Tex. Crim. App.

2012) (“[C]onstitutional error is subject to a much stricter harm analysis on

appeal.”); Dees v. State, Nos. 02-12-00488-CR, 02-12-00489-CR, 2013 WL

6869865, at *6 n.6 (Tex. App.—Fort Worth Dec. 27, 2013, pet. ref’d) (mem. op.,

not designated for publication) (because appellate court determined defendant not

harmed under constitutional-error analysis, no need to “conduct a less intensive

nonconstitutional harm analysis for the trial court’s [alleged] error in excluding the

complained-of evidence”).

      The United States Supreme Court and the Texas Court of Criminal Appeals

have held that a harmless-error analysis applies when a trial court improperly limits

a defendant’s cross-examination of a witness in violation of the Confrontation



                                            8
Clause. See Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438; Shelby v. State, 819

S.W.2d 544, 546–47 (Tex. Crim. App. 1991); see also TEX. R. APP. P. 44.2(a).

Under this analysis, an appellate court must first assume that the damaging potential

of the cross-examination was fully realized, and then determine whether the error

was harmless beyond a reasonable doubt in light of the following factors: (1) the

importance of the witness’s testimony in the prosecution’s case; (2) whether the

testimony was cumulative; (3) the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points; (4) the extent of cross

examination otherwise permitted; and (5) the overall strength of the prosecution’s

case. Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438; Shelby, 819 S.W.2d at 547.

      Here, appellant specifically complains about the following exchange, which

occurred during his cross-examination of the complainant’s father:

      [Appellant’s attorney]:          May we approach, Your Honor?

      THE COURT:                       Yes.

      (At the bench, on the record.)

      [Appellant’s attorney]:          Now, Your Honor, there’s -- in the
                                       offense report where they talk to this
                                       man, basically she -- there’s a custody
                                       battle going on.

      THE COURT:                       At what point?

      [Appellant’s attorney]:          After his knowledge of this.

      THE COURT:                       Okay. After all this, okay.

                                          9
[Appellant’s attorney]:   Yes, yes. So they’re fighting for
                          custody and they set up a custody
                          hearing. There’s a -- there was a
                          hearing set to determine --

[State’s attorney]:       Can you whisper?

[Appellant’s attorney]:   Yes. There was a custody hearing to
                          determine where the child was going to
                          be in general. Well, he didn’t show up
                          and basically he said he didn’t show up
                          because the mother threatened to have
                          him killed.

[Appellant’s attorney]:   No, he just --

(inaudible).

THE COURT REPORTER:       I can’t hear you . . . .

THE COURT:                I don’t think he wants it on the record.

[Appellant’s attorney]:   Okay. So there was a custody hearing.

[State’s attorney]:       Can you whisper?

[Appellant’s attorney]:   Okay. Sorry. There was a custody
                          hearing, and, you know, he didn’t
                          show up to the custody hearing so she
                          got custody to bring the child back to
                          Texas but he also -- she asked the
                          investigator if she could put a
                          protective order against him because
                          he was threatening to kill the mom, so
                          -- but --

THE COURT:                That’s not coming in here.

[Appellant’s attorney]:   Okay. That’s why I approached.

                            10
      THE COURT:                       Okay. And my understanding is she’s
                                       on the witness list also, right?

      [Appellant’s attorney]:          Yeah.

      THE COURT:                       No, that’s not coming in at this point.

      [Appellant’s attorney]:          Okay. All right. Thank you, Your
                                       Honor.

      (End of discussion at the bench.)

      We need not address whether the trial court erred in limiting appellant’s cross-

examination of the complainant’s father about the “custody battle” between the

complainant’s parents because, even were we to conclude that the trial court erred,

appellant has failed to establish harm. See TEX. R. APP. P. 47.1; see also Collazo v.

State, No. 04-12-00004-CR, 2013 WL 3279268, at *3–4 (Tex. App.—San Antonio

June 26, 2013, no pet.) (mem. op., not designated for publication) (declining “to

address whether the trial court erred in limiting the cross-examination . . . because

[the appellate court] h[e]ld that any such error would be harmless beyond a

reasonable doubt”); Mole v. State, No. 2-08-021-CR, 2009 WL 1099433, at *10–11

(Tex. App.—Fort Worth Apr. 23, 2009, pet. ref’d) (mem. op., not designated for

publication) (“[A]ssuming without deciding that the trial court abused its discretion

by prohibiting cross-examination of [the witness] regarding the internal

investigation against him, we will perform the required harm analysis.”).




                                          11
      In conducting our harm analysis, we focus on the testimony of the

complainant’s father and assume that the damaging potential of the cross-

examination was fully realized. See Shelby, 819 S.W.2d at 547, 550. In other words,

we assume that the jury was fully informed of the “custody battle between the

complainant’s parents” and that it constituted “motiv[ation] for [the complainant’s

father’s] testimony and the allegations [made] against [a]ppellant”; we then apply

the factors delineated in Van Arsdall and Shelby. See Van Arsdall, 475 U.S. at 684,

106 S. Ct. at 1438; Shelby, 819 S.W.2d at 547, 550–51.

      The complainant’s father testified that the complainant, while visiting him in

New York, told him “about a man named Santos,” a friend of her mother and a

neighbor, who “took her upstairs” and “put his private on her.” The complainant

also told her father that the man’s “private touched” “her front and behind” “[p]rivate

parts.”

      In regard to the importance of the testimony of the complainant’s father to the

State’s case and the cumulativeness of the testimony, we note that the same events

that were described by the complainant’s father were also discussed, in significantly

more detail, by the complainant herself and Santos, the licensed clinical social

worker who interviewed the complainant after she reported the sexual assault.

      Further, at trial, the complainant identified appellant as the man who had

sexually assaulted her, and both Santos and Officer Estrada, the lead investigator



                                          12
handling the case, also testified that the complainant had identified appellant as the

man who had sexually assaulted her. The testimony of the complainant’s father

merely reiterated what the complainant, Santos, and Estrada testified to at trial. In

other words, the testimony of the complainant’s father was cumulative and not vital

to the State’s case. See, e.g., Brown v. State, Nos. 14-12-00833-CR, 14-12-00834-

CR, 2014 WL 5308790, at *7 (Tex. App.—Houston [14th Dist.] Oct. 16, 2014, pet.

ref’d) (mem. op., not designated for publication) (testimony “not essential because

it was largely cumulative” of other witnesses’ testimony); Ramos v. State, No. 01-

12-00957-CR, 2014 WL 50812, at *11 (Tex. App.—Houston [1st Dist.] Jan. 7, 2014,

no pet.) (mem. op., not designated for publication) (witness’s testimony “largely the

same as that of the complaining witness”); Montgomery v. State, 383 S.W.3d 722,

728–29 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (error harmless beyond

reasonable doubt where “testimony was not very important to the State’s case” and

“was cumulative of other evidence before the jury”).

      In regard to the presence or absence of evidence corroborating or

contradicting the testimony of the complainant’s father on material points, the

complainant’s testimony corroborated much of her father’s testimony as did the

testimony of Santos and Officer Estrada; and the only evidence that contradicted the

testimony of the complainant’s father was Estrada’s testimony that appellant denied

“all . . . criminal conduct.” See, e.g., Bradshaw v. State, No. 04-11-00173-CR, 2012



                                         13
WL 1648218, at *4 (Tex. App.—San Antonio May 9, 2012, pet. ref’d) (mem. op.,

not designated for publication) (“[A]ny error the trial court may have made in

limiting cross-examination” of witness harmless where other witness’s testimony

provided corroboration). And, although appellant was not permitted to fully cross-

examine the complainant’s father about the “custody battle between the

complainant’s parents,” he was otherwise permitted to cross-examine the

complainant’s father, and he did elicit the following:

      [Appellant’s attorney]:          . . . Now, while you were living in
                                       New York, was there a -- were you
                                       fighting for custody for [the
                                       complainant]?

      [The complainant’s father]:      No, that was afterwards.

      [Appellant’s attorney]:          Okay. After what?

      [The complainant’s father]:      After what happened here.

Further, appellant was permitted to ask the complainant’s mother questions about

the “custody battle” during his cross-examination of her. See, e.g., Dees, 2013 WL

6869865, at *7–9 (defendant “had ample opportunity to cross-examine the [witness]

and present his defensive theory to the jury”); Smith v. State, 236 S.W.3d 282, 294–

95 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) (any error harmless where

defendant “was otherwise permitted to fully cross-examine” witness).

      Finally, we note that the State’s case against appellant was strong, even

without the testimony of the complainant’s father. The complainant testified that

                                         14
while she was out riding her bicycle, she stopped to help appellant “clean his car.”

He then asked her whether she wanted a soda. When she said that she did, appellant

“took [her] to go upstairs,” where he “told [her] to take off [her] pants,” “made [her]

lay down,” and then “put his middle part inside of [her] middle part.” Appellant was

“on top of [the complainant],” she was “facing up at the ceiling,” and it “hurt.”

      Santos testified that the complainant told her that while “she was outside

riding her bicycle,” a man named “Santos,” who “lived in the same [apartment]

buildings” that she lived in, “offered her a soda.” However, he “tricked” her and

took her to “his apartment,” where he “pulled [her] shorts down and [her] panties

down,” “put [her] down” on the ground, and “put his wiener in [her] butt.”

      Further, Officer Estrada testified that after the complainant returned to

Houston, she, from a photographic array prepared by Estrada, identified appellant as

the man who had sexually assaulted her. And Cahill, the pediatrician who examined

the complainant after the sexual assault was reported, testified that the complainant

had “lesions on [her] anus consistent with ano-genital warts”—a “common”

sexually-transmitted    disease.     And        because   the   complainant   did   not

“manifest[] . . . warts” until six years of age, Cahill opined that she “acquired” the

sexually-transmitted disease “after birth” “through direct sexual contact” with

another person. Cf. Brown, 2014 WL 5308790, at *7 (“Even excluding [witness’s]

testimony,” “jury heard compelling testimony of the altercation” from other



                                           15
witnesses “who[] testified consistently on the material points.”); Ramos, 2014 WL

50812, at *11 (“The State’s case was strong” where “there was . . . testimony from

the complaining witness.”).

      Based on the foregoing factors, focusing on the testimony of the

complainant’s father, and assuming the jury had been fully informed about the

“custody battle between the complainant’s parents” and that it constituted

“motiv[ation] for [the complainant’s father] testimony and the allegations [made]

against [a]ppellant,” we hold that any error of the trial court in not allowing

appellant to fully cross-examine the complainant’s father about the “custody battle”

was harmless beyond a reasonable doubt. See Van Arsdall, 475 U.S. at 684, 106 S.

Ct. at 1438; Shelby, 819 S.W.2d at 550–51.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Terry Jennings
                                             Justice

Panel consists of Justices Jennings, Keyes, and Bland.

Publish. TEX. R. APP. P. 47.2(b).




                                        16
