Affirmed and Memorandum Opinion filed August 30, 2018.




                                        In The

                      Fourteenth Court of Appeals

                                NO. 14-16-00974-CR

               JOSE LUIS GUTIERREZ-DELACRUZ, Appellant
                                          V.
                        THE STATE OF TEXAS, Appellee

                     On Appeal from the 248th District Court
                             Harris County, Texas
                         Trial Court Cause No. 1366726

                   MEMORANDUM OPINION

      A jury found appellant guilty of aggravated sexual assault of a child and assessed
punishment at thirty-two years’ confinement and a $10,000 fine. Appellant challenges
his conviction based on the trial court’s exclusion of evidence of the complainant’s
older brother making a “humping motion” to the complainant’s backside on an earlier
date. We affirm.
I.    Background

      The complainant was four years old at the time of the offense and nine years old
by the time she testified at trial. She testified that she and her brother, who was seven
years old at the time of the offense, slept on a sofa at an overnight babysitter’s house.
Appellant lived with the babysitter.

      On the final night that the complainant and her brother stayed at the house,
appellant went to the sofa during the night, pulled the complainant’s clothes down to
her knees, and put two of his fingers inside the complainant’s sexual organ. When the
complainant started crying and tried to wake up her brother, appellant stopped and went
back to his bedroom. The complainant outcried to her mother the following day.
Appellant testified and denied the allegations.

      During trial, appellant’s counsel made an offer of proof for the excluded
evidence and argued for its admissibility as relevant to show an alternative perpetrator:

      [The complainant’s mother] has seen [the complainant’s brother] go up to
      his sister, [the complainant], and get behind her and do a humping motion
      like he’s having, you—you know, touching his front part, his penile area
      to [the complainant’s] backside.
      ...
      And I feel that it’s relevant in the sense that it would show a jury, the trier
      of fact, that because of the prior situation between [the brother] and [the
      complainant] it might have been somebody else that did the touching, if
      the touching ever occurred at all.

The State objected to the evidence under Rule 412 of the Texas Rules of Evidence. See
Tex. R. Evid. 412 (stating that a specific instance of a victim’s past sexual behavior is
inadmissible in a prosecution for aggravated sexual assault, but listing exceptions). The
trial court excluded the evidence, noting that any relevancy of the evidence was “very
tenuous,” and that “the prejudicial effect would substantially outweigh any probative
value.”
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      Appellant challenges this ruling on appeal.

II.   No Error to Exclude Under Rule 403

      Appellant contends in his four issues on appeal that the “humping” evidence was
admissible under various theories. In particular, appellant contends in his second issue
that the trial court erred by excluding the evidence under Rule 403 of the Texas Rules
of Evidence because the evidence shows that the complainant’s brother was a “sexual
predator” who “sexually abused” the complainant.

      We will affirm a trial court’s ruling on evidence if it is correct under any theory
of law applicable to the ruling, regardless of the reasoning provided by the trial court.
See De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). We review a
trial court’s ruling under Rule 403 for an abuse of discretion. Pawlak v. State, 420
S.W.3d 807, 810 (Tex. Crim. App. 2013). The trial court’s ruling must be upheld if it
is within the zone of reasonable disagreement. Id.

      Rule 403 states that a court may exclude relevant evidence “if its probative value
is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Tex. R. Evid. 403. When a sexual assault case
involves a “he said, she said” trial based on diametrically different versions of events,
Rule 403 “should be used sparingly to exclude relevant, otherwise admissible evidence
that might bear upon the credibility of either the defendant or complainant.” Hammer
v. State, 296 S.W.3d 555, 561–62 (Tex. Crim. App. 2009).

      However, “courts must be sensitive to the special problems presented by
‘alternative perpetrator’ evidence.” Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim.
App. 2002). “Although a defendant obviously has a right to attempt to establish his
innocence by showing that someone else committed the crime, he still must show that


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his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its
own or in combination with other evidence in the record, to show a nexus between the
crime charged and the alleged ‘alternative perpetrator.’” Id. Evidence of an alternative
perpetrator is inadmissible if “it is mere speculation that another person may have
committed the offense.” Roderick v. State, 494 S.W.3d 868, 875 (Tex. App.—Houston
[14th Dist.] 2016, no pet.) (quoting Dickson v. State, 246 S.W.3d 733, 739 (Tex.
App.—Houston [14th Dist.] 2007, pet. ref’d)); see also Wiley, 74 S.W.3d at 407 (“It is
not sufficient for a defendant merely to offer up unsupported speculation that another
person may have done the crime.” (quoting United States v. McVeigh, 153 F.3d 1166,
1191 (10th Cir. 1998))).

       For example, in an arson prosecution, the Court of Criminal Appeals upheld the
exclusion of evidence of an alternative perpetrator under Rule 403 when there was
evidence that the alternative perpetrator had been thrown out of the business several
days earlier, striking matches, and acting crazy, and that the alternative perpetrator had
been seen standing across the street from the building and watching it burn. See Wiley,
74 S.W.3d at 403, 406. The court assumed the alternative-perpetrator evidence had
some “marginal relevance,” but the court reasoned that the evidence had slight
probative value because of its “highly speculative nature.” Id. at 407. The evidence
presented a great threat of confusing the issues because it would have forced the State
to disprove a “nebulous allegation,” resulting in a “side trial” that “might have led the
jury astray.” Id. The evidence presented a threat of unfair prejudice because “it would
invite the jury to blame an absent, unrepresented, incompetent person for an arson when
there was not a scintilla of evidence that he was actually involved.” Id. Notably, the
accused in Wiley did not “ever make any connection between the mere presence of [the
alternative perpetrator] near the fire and any act he might have committed to set the fire
or assist another in setting the fire.” Id.


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       Similarly, in a prosecution for aggravated sexual assault of a five-year-old child,
this court upheld the exclusion of evidence that a man who had lived with the
complainant’s mother and had access to the complainant also had been convicted of
sexually assaulting a child. See Roderick, 494 S.W.3d at 874, 877. The child never
alleged that she had been assaulted by the alternative perpetrator, and there was no
evidence in the record connecting the alternative perpetrator with a sexual assault
against the child. Id. at 877.

       Here, the complainant has never alleged that she was assaulted by her brother,
nor is there any evidence in the record connecting the brother with a sexual assault
against the complainant. See Tex. Penal Code § 22.011(a)(2). Even if the “humping”
incident had some marginal relevance, it had slight probative value because of its
highly speculative nature for establishing the brother’s commission of a sexual assault.
See Wiley, 74 S.W.3d at 407. Appellant’s nebulous allegation—that the complainant’s
brother is a sexual predator who sexually abused the complainant—had a substantial
likelihood to cause unfair prejudice, confuse the issues, and mislead the jury. See id.
Appellant notes that the brother was present with the complainant during the assault on
the sofa, but appellant has not made any connection between the mere presence of the
brother on the sofa and any act of sexual assault against the complainant. See id.

       The trial court’s ruling to exclude the evidence under Rule 403 was within the
zone of reasonable disagreement, so the court did not abuse its discretion. Appellant’s
second issue is overruled.

III.   Other Rationales Unpreserved or Inapplicable Considering the Trial
       Court’s Rule 403 Ruling
       Appellant contends that the evidence should have been admitted for various
other reasons. However, we hold that each of these rationales was either not preserved
or meritless in light of the trial court’s Rule 403 ruling.

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      Within appellant’s second issue, he contends that the evidence would have
“established that the complainant had prematurely gained knowledge of both sex and
sexual abuse from an alternative source.” This rationale for the admission of evidence
was not presented to the trial court, so no error is preserved. See Penton v. State, 489
S.W.3d 578, 580 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (reasoning that to
preserve error the complaining party “must have conveyed to the trial court the
particular complaint raised on appeal, including the precise and proper application of
law as well as underlying rationale”). And, the complaint lacks merit because the prior
act of the brother making a “humping motion” against the complainant’s backside did
not closely resemble the appellant’s conduct of removing the complainant’s clothes
and placing two fingers inside her sexual organ. See Roderick, 494 S.W.3d at 878
(reasoning that to show relevancy of a child victim’s sexual conduct “as an alternative
source of sexual knowledge,” the defendant must show that the prior acts “so closely
resembled those of the present case that they could explain the victim’s knowledge
about the sexual matters in question”; holding that evidence of the child’s observation
of her brother and the defendant engaging in oral sex was inadmissible because it would
not explain the child’s testimony describing the experience of performing oral sex on
the defendant).

      In his first issue, appellant contends that the evidence was admissible under Rule
412, the “rape shield” rule, because (1) the rule, which excludes evidence of specific
instances of sexual conduct, is inapplicable to involuntary sexual conduct and (2) the
exception for showing the victim’s motive or bias applies. See Tex. R. Evid. 412(a)–
(b). Appellant did not make either of these arguments to the trial court, so no error is
preserved. See Penton, 489 S.W.3d at 580. And, the complaint lacks merit because any
marginal probative value of the “humping” evidence would not have outweighed the
danger of unfair prejudice. See Wiley, 74 S.W.3d at 407. Rule 412(b)(3) requires that


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for the evidence to be admissible, the probative value must outweigh the danger of
unfair prejudice. See Tex. R. Evid. 412(b)(3). This standard for admissibility is more
onerous than Rule 403’s balancing test. Compare Tex. R. Evid. 403 (admissible unless
prejudicial effect substantially outweighs probative value), with Tex. R. Evid.
412(b)(3) (admissible if probative value outweighs prejudicial effect). See generally
Ukwuachu v. State, No. PD-0366-17, 2018 WL 2711167, at *8 (Tex. Crim. App. June
6, 2018) (not designated for publication) (Yeary, J., concurring) (noting that “unlike
Rule 403 of the Rules of Evidence, which embodies a presumption of admissibility of
relevant evidence even if it has some potential to be unfairly prejudicial, Rule 412(b)(3)
tips the scale against admissibility of such questionable evidence” (footnote omitted)).
Because the trial court did not abuse its discretion by concluding that the danger of
unfair prejudice substantially outweighed probative value under Rule 403, the court
could not have abused its discretion by concluding that the probative value did not
outweigh the danger of unfair prejudice under Rule 412.

      In his third issue, appellant contends that the trial court erred by not admitting
the evidence under “the doctrine of optional completeness codified in Texas Rule of
Evidence 107.” Appellant did not make this argument to the trial court, and therefore,
it is not preserved. See Penton, 489 S.W.3d at 580. Furthermore, the trial court did not
err under Rule 107 because the court properly exercised its discretion to exclude the
evidence under Rule 403. See Walters v. State, 247 S.W.3d 204, 218 (Tex. Crim. App.
2007) (noting that admissibility under Rule 107 is “limited by Rule 403”).

      In his fourth issue, appellant contends that the trial court violated appellant’s
right to due process under the United States Constitution by excluding evidence of an
alternative perpetrator. We assume without deciding that error was preserved. An
evidentiary ruling that excludes evidence may rise to the level of a constitutional
violation if either: (1) a state evidentiary rule categorically or arbitrarily prohibits the

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defendant from offering otherwise relevant, reliable evidence that is vital to the
defense; or (2) a trial court makes a clearly erroneous ruling excluding otherwise
relevant, reliable evidence that forms such a vital portion of the case that exclusion
effectively precludes the defendant from presenting a defense. Wiley, 74 S.W.3d at 405.
Appellant does not contend that an evidentiary rule categorically or arbitrarily
prohibited him from offering evidence, so his alternative-perpetrator theory is based on
the second rationale—a clearly erroneous ruling that excludes admissible evidence and
which effectively prevents him from presenting his defense. See id. at 405–06.
However, as explained above, the trial court’s ruling under Rule 403 was not clearly
erroneous. Thus, appellant’s constitutional right to present a defense was not violated.
See id. at 408.

      Appellants first, third, and fourth issues are overruled.

IV.   Conclusion
      Having overruled each of appellant’s issues, we affirm the trial court’s judgment.




                                       /s/       Ken Wise
                                                 Justice



Panel consists of Justices Boyce, Donovan, and Wise.
Do Not Publish — Tex. R. App. P. 47.2(b).




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