                              NUMBER 13-14-00031-CR

                                 COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


AARON ANTHONY TORRES,                                                                  Appellant,

                                                  v.

THE STATE OF TEXAS,                                                                     Appellee.


                       On appeal from the 19th District Court
                           of McLennan County, Texas.


                              MEMORANDUM OPINION

                Before Justices Rodriguez, Garza, and Longoria
                 Memorandum Opinion by Justice Rodriguez
       Appellant Aaron Anthony Torres appeals from a judgment rendered by the 19th

District Court of McLennan County, Texas.1 A jury found Torres guilty of seven counts


       1 This case is before the Court on transfer from the Tenth Court of Appeals in Waco pursuant to a
docket equalization order issued by the Supreme Court of Texas. See TEX. GOV'T CODE ANN. § 73.001
(West, Westlaw through Ch. 46, 2015 R.S.).
of sexual abuse of his minor daughter, G.T.2 Torres was found guilty of: continuous

sexual abuse of a child (Count 1); aggravated sexual assault of a child (Counts 2–4); and

indecency with a child by contact (Counts 5–7). TEX. PENAL CODE ANN. §§ 21.02, 22.021,

21.11 (West, Westlaw through Ch. 46, 2015 R.S.). After the jury assessed punishment,

the trial court sentenced Torres to life imprisonment on Counts 1 through 4, and twenty

years’ imprisonment on Counts 5 through 7. Torres raises three issues on appeal. We

affirm.

                                         I.      BACKGROUND3

          In 2010, when G.T. was twelve years old, she was admitted to the Cedar Crest

Hospital and Rehabilitation Center (Cedar Crest) for treatment and evaluation for

behavioral issues. While at Cedar Crest, G.T. made an “outcry” statement to one of her

therapists, Lori Smith; G.T. gave Smith a piece of paper on which she detailed her outcry

statement. The hand-written note said “when I was little my dad raped and sexually

assaulted me.” G.T. also told Smith that Torres said he would kill her if she told anyone.

          Smith contacted Child Protective Services and the police. G.T. was referred to

the Advocacy Center where Ann Sims, M.D. performed an evaluation. At the Advocacy

Center, G.T. provided Dr. Sims a more detailed description of the abuse: she claimed

Torres began to sexually assault her when she was eight years old and that the abuse

continued until she was eleven years old. Detective Thomas Schmidt with the Beverly


          2 We will refer to the minor complainant as G.T., as it was the abbreviation used by the parties in
their briefing.

         3 Because this is a memorandum opinion and the parties are familiar with the facts, we will not

recite them here except as necessary to advise the parties of the Court's decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.

                                                     2
Hills Police Department investigated the claim and determined there was probable cause

to arrest Torres.      Torres was later indicted for continuous sexual abuse of a child,

aggravated sexual assault of a child, and indecency with a child.

        Torres pled “not guilty” and elected to have a trial by jury. The jury found Torres

guilty on all seven counts and assessed life imprisonment on Counts 1 through 4 and

twenty years’ imprisonment on Counts 5 through 7. The trial court entered judgment

consistent with the verdict. This appeal followed.

                                  II.     CONFRONTATION CLAUSE

        By his first issue, Torres contends that the trial court abused its discretion when it

excluded video evidence of G.T.’s arrest in 2013. Specifically, Torres contends that the

trial court violated his right to challenge the credibility and truthfulness of G.T. under the

Confrontation Clause of the Sixth Amendment to the United States Constitution by

excluding evidence that was necessary to challenge both her credibility and mental state.4

        Torres’s attorney argued before the trial court that the video was relevant to show,

for credibility and impeachment purposes, the “mental disability or the mental capacity of

the witness” and what she was going through “at that time.” Upon questioning by the

trial court, Torres’s trial attorney clarified that he was not seeking to admit the video

through Texas Rule of Evidence 608, but through the Confrontation Clause. Torres’s

attorney went on to say that the video was “evidence of [G.T.’s] mental incapacity, her




        4 At trial, Torres argued for admission of the video only on constitutional grounds pursuant to the

Confrontation Clause. Torres, as the proponent of the evidence, was required to offer the evidence for its
admissible purpose. See TEX. R. APP. P. 33.1; Reyna v. State, 168 S.W.3d 173, 173 (Tex. Crim. App.
2005). To the extent Torres raises other issues on appeal supporting admission of the video evidence,
they are not preserved. See TEX. R. APP. P. 33.1; Reyna, 168 S.W.3d at 179.
                                                    3
mental disability that she’s going through at those moments, and that’s directly around

the time frame that she is making these allegations . . . .” The trial court excluded the

evidence.

       Torres made an offer of proof to the trial court after it excluded his proffered

evidence. Outside the presence of the jury, he called Officer Eric Trojanowski with the

Waco Police Department to the stand. Officer Trojanowski testified that he responded

to a call on January 7, 2013, about a disturbance in progress involving a runaway minor

he identified as G.T. Officer Trojanowski took G.T. into custody in an effort to defuse the

situation.     The officer’s video equipment recorded a video of the arrest and the

subsequent ride in the patrol vehicle. That video showed G.T. aggressively resisting

restraint, threatening Officer Trojanowski, and using profanity.5

       During Officer Trojanowski’s testimony, the trial court noted that the video was

taken in 2013 and not in 2010 as argued by Torres. The following exchange occurred:

       Court:           I want to make sure I understood what you said earlier, Officer.
                        This was in January of this year?

       Officer:         Yes, sir.

       Court:           Of 2013?

       Officer:         Of 2013, yes, sir.

       State:           So we don’t even have the right officer.

       Defense:         Oh, you know what, that’s not the one before Cedar Crest.

       Court:           Because this outcry happened in —

       State:           2010.



       5   The video was also offered into evidence via an offer of proof.
                                                      4
       Defense:        Right.

       Court:          Okay, so this incident certainly doesn’t have anything to do
                       with this case.

       Defense:        Okay, I’ll just close it up, then.

                ....

       Court:          I thought you were saying this happened in proximity to the
                       time of the accusation.

       Defense:        That’s what I was thinking, but when I look back at it now, that’s
                       not correct.

        A.      Applicable Law

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

discretion. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Shilling v.

State, 60 S.W.3d 280, 282 (Tex. App.—Waco 2001, pet. ref’d). The trial court did not

abuse its discretion if its decision was in the “zone of reasonable disagreement.” See

Oprean, 201 S.W.3d at 726. “The Confrontation Clause of the Sixth Amendment, made

applicable to the States through the Fourteenth Amendment, provides: ‘In all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.’” Maryland v. Craig, 497 U.S. 836, 844 (1990) (citing U.S. CONST. amend.

VI). The central purpose of the Confrontation Clause is to ensure the reliability of the

evidence against a criminal defendant by subjecting it to rigorous testing in the context of

an adversary proceeding before the trier of fact. Crawford v. Washington, 124 U.S. 36,

74 (2004) (citing Craig, 497 U.S. at 845).

       As this description indicates, the right guaranteed by the Confrontation
       Clause includes not only a personal examination, but also (1) insures that
       the witness will give his statements under oath—thus impressing him with
       the seriousness of the matter and guarding against the lie by the possibility
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       of a penalty for perjury; (2) forces the witness to submit to cross-
       examination, the ‘greatest legal engine ever invented for the discovery of
       truth’; and (3) permits the jury that is to decide the defendant's fate to
       observe the demeanor of the witness in making his statement, thus aiding
       the jury in assessing his credibility.

Id. at 845–46 (internal citations omitted).      “The Confrontation Clause is generally

satisfied when the defense is given a full and fair opportunity to probe and expose

[testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-

examination, thereby calling to the attention of the factfinder the reasons for giving scant

weight to the witness' testimony.” Id. at 847 (quoting Delaware v. Fensterer, 474 U.S.

15, 22 (1985) (per curiam)).

       “Generally, the right to present evidence and to cross-examine witnesses under

the Confrontation Clause does not conflict with the corresponding rights under state

evidentiary rules.” Tollett v. State, 422 S.W.3d 886, 892–93 (Tex. App.—Houston [14th

Dist.] 2014, pet. denied) (citing Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App.

2009)). The Confrontation Clause does not confer on a defendant the right to impeach

the general credibility of a witness through otherwise prohibited modes of cross-

examination. Id. at 893. “[D]espite a defendant's constitutional right to cross-examine

witnesses, the trial court retains wide latitude to impose reasonable limits on such cross-

examination based on concerns about, among other matters, harassment, prejudice,

confusion of the issues, the witnesses' safety, or interrogation that is repetitive or only

marginally relevant.” Id. (citing Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App.

2010)).




                                             6
       B.      Discussion

       Pursuant to the Confrontation Clause of the Sixth Amendment, Torres had the right

to be confronted with the witnesses against him. See Craig, 497 U.S. at 894. G.T.

testified during the trial and was subject to cross-examination by Torres. The transcript

of Torres’s cross-examination of G.T. consists of sixteen pages in the reporter’s record.

Torres had a full and fair opportunity to probe and expose G.T.’s alleged testimonial

infirmities through cross-examination. See id. at 847.

       Torres contends, in error, that the Confrontation Clause entitled him to admit as

evidence a video recording taken three years after the outcry statement at issue for the

purpose of attacking G.T.’s credibility. However, the Confrontation Clause does not

permit Torres the right to impeach G.T.’s general credibility through otherwise prohibited

modes of cross-examination. See id. at 893. Though Torres had a constitutional right

to cross-examine G.T., the trial court retained wide latitude to impose “reasonable limits”

on cross-examination when it was prejudicial, repetitive, or only marginally relevant.” 6

See id. (citing Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010)).

       We conclude the trial court did not abuse its discretion when it excluded the video

evidence because the video was duplicative of extensive testimony about G.T.’s

behavioral issues and its relevance was further diluted by the fact that it occurred three

years after, and not immediately before, the outcry statement at issue. See id. at 894–

97; Irby, 327 S.W.3d at 145.

       We overrule Torres’s first issue.


       6   G.T., her mother, Smith, and Dr. Sims testified regarding G.T.’s behavioral problems and her
various treatment programs.
                                                  7
               III.   TEXAS CODE OF CRIMINAL PROCEDURE ARTICLE 38.072

       By his second issue, Torres contends that the trial court erred when it permitted

the State to introduce G.T.’s “outcry” statement into evidence.       Specifically, Torres

contends that the State failed to follow the statutory provisions of article 38.072 of the

code of criminal procedure because it did not give notice of its intent to use the outcry

statement fourteen days before trial and the statement was admitted to the jury without a

preliminary hearing on reliance. See TEX. CODE CRIM. PROC. ANN. art. 38.072 (West,

Westlaw through Ch. 46, 2015 R.S.).

       A.     Applicable Law

        Article 38.072 provides that outcry statements meeting the article's requirements

are not inadmissible because of the hearsay rule. Id. The article requires the trial court

to hold a hearing regarding reliability prior to admitting outcry testimony.       See id.

Generally, in order to complain about non-compliance with article 38.072, a defendant

must preserve the issue for appeal by making an objection in the trial court. TEX. R. APP.

P. 33.1(a); Long v. State, 800 S.W.2d 545, 548 (Tex. Crim. App. 1990) (per curiam); Zarco

v. State, 210 S.W.3d 816, 829 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see also

Gabriel v. State, 973 S.W.2d 715, 719 (Tex. App.—Waco 1998, no pet.) (“[A]fter a

hearsay objection is made, the State has the burden to show it has complied with all the

requirements listed in article 38.072.”).

       Torres did not object to the outcry statement during trial. The State referenced

the outcry statement in its opening statement, and G.T.’s therapist testified to the outcry

statement without objection.     Torres cited to an instance in the record in which he


                                            8
objected to hearsay; however, the objection was unrelated to the outcry statement at

issue. The following exchange occurred:

       State:      And just from—You were, obviously, not there at the time of her
                   admission, but from your review of the records, what was your
                   understanding of the reason she was brought to Cedar Crest
                   that day.

       Witness:    What I see is that she was brought due to aggressive behavior,
                   and it does say secondary—

       Defense:    Judge, I would object. At this time she’s reading from the
                   records. It’s hearsay. She didn’t make the records.

It is clear from the context of Torres’s hearsay objection that it was not made to the outcry

statement, but was instead made to G.T.’s medical records regarding her admission to

the facility, a topic unrelated to her subsequent outcry.

       Accordingly, we find that Torres did not adequately apprise the trial court of the

nature of his complaint and, thus, did not preserve his complaint for appellate review. See

TEX. R. APP. P. 33.1(a); Long, 800 S.W.2d at 548; Zarco, 210 S.W.3d at 828–29.

       We overrule Torres’s second issue.

                                IV.    CUMULATIVE ERROR

       By his third issue, Torres contends that he was denied a fair trial based on the

“cumulative errors” in the previously addressed issues. Torres’s argument fails because

we have determined that the trial court did not commit error at trial. See Chamberlain v.

State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (noting that there is “no authority

holding that non-errors may in their cumulative effect cause error”). We overrule Torres’s

third issue.



                                             9
                                   V.      CONCLUSION

       We affirm the judgment of the trial court.



                                                        NELDA V. RODRIGUEZ
                                                        Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the 1st
day of September, 2015.




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