                                         COURT OF APPEALS
                                      EIGHTH DISTRICT OF TEXAS
                                           EL PASO, TEXAS


                                                          §
    JAIME COVARRUBIAS,                                                       No. 08-11-00176-CR
                                                          §
                                   Appellant,                                    Appeal from the
                                                          §
    v.                                                                   243rd Judicial District Court
                                                          §
    THE STATE OF TEXAS,                                                         of El Paso, Texas
                                                          §
                                   Appellee.                                  (TC# 20090D00299)
                                                          §


                                                  OPINION

         Jaime Covarrubias appeals the trial court’s judgment convicting him of one count of

aggravated sexual assault of A.G., sentencing him to 40 years’ imprisonment, and fining him

$10,000. In three issues, Appellant contends that the trial court violated his constitutional right to

present a complete defense by making certain evidentiary rulings impacting his ability to present

his case to the extent and in the form he desired and that these evidentiary rulings were erroneous

in and of themselves. For the reasons that follow, we affirm.

                         FACTUAL AND PROCEDURAL BACKGROUND

         Appellant was indicted and tried on two counts of aggravated sexual assault of A.G. and

one count of indecency with A.G.1 At trial, his defensive theory was that A.G.’s uncle, Juan

Chaires, was the actual perpetrator and that A.G., who is intellectually disabled, had false

memories about the sexual assault and incorrectly attributed to him what Chaires had done to her.

1
  After the jury deadlocked on the charges of indecency and aggravated sexual assault by digital penetration, the State
dismissed the charges. Accordingly, our recitation of the relevant facts necessary for the disposition of this appeal
relate only to the offense for which Appellant was convicted: the aggravated sexual assault of A.G. by penetrating her
mouth with his penis.
          Appellant attempted to undermine the child’s credibility when he called her as a witness

during his case-in-chief. Then eleven years old, A.G. testified that when she was eight or nine,

she told her mother that Appellant had covered her eyes with a bandana, put Duvalin2 on his penis,

and placed his penis in her mouth. When asked if Appellant was “the only one [who] has done

this to you,” A.G. replied, “Yes.” Defense counsel then asked whether anyone else had done

“this” to her, and A.G. testified that “[Appellant] did at first and then [Chaires] did” and that

Chaires did so at the same time Appellant assaulted her. After a bench conference at which

defense counsel was admonished to ask specific rather than broad questions, A.G. maintained that

both Appellant and Chaires placed their “privates” in her mouth.

          On cross-examination, the prosecutor used an anatomically correct doll to question A.G.

After identifying the penis on the male doll, A.G. demonstrated how she was blindfolded with the

bandana and then testified that she tasted candy when Appellant placed his penis in her mouth.

She also said that Chaires did not put his penis in her mouth because “[she] pulled [her] head so he

could not get it.” He then pulled down his pants and exposed his penis, which she touched with

her hand when he laid her on top of him. Asked twice by the prosecutor whether she was certain

that Appellant was the one who placed his candy-covered penis in her mouth while she was

blindfolded, A.G. answered “yes” each time. The trial court subsequently instructed the jury as

follows:

          During the testimony of [A.G.], you heard evidence of other extraneous acts of
          potential sexual abuse that had been perpetrated on [A.G.] at the hands of . . .
          Chaires. You are instructed that you are to disregard any testimony or evidence
          regarding past sexual behavior, if any, perpetrated on [A.G.] by . . . Chaires.

          In an attempt to further undermine A.G.’s credibility, Appellant pursued two other avenues


2
    Duvalin is a Mexican candy cream.
                                                  2
of attack. First, he sought to have Dr. Carmen Petzold, a psychologist, testify as an expert on false

memories. At the State’s request, the trial court held a hearing outside the jury’s presence.

Dr. Petzold testified it was possible that A.G.’s claim that she was sexually assaulted by Chaires

was actually a false memory of Appellant’s assault on her. Dr. Petzold also acknowledged that

she could not ascertain which of the assaults was the false memory. After the hearing, the trial

court ruled that Dr. Petzold could testify generally that a child can have false memories for many

reasons, including those caused by repeated interviewing in a forensic setting, but she could not

testify about her findings concerning A.G., or the child’s disability and mental capacity.

       Second, Appellant sought to have the videotape of A.G.’s forensic interview admitted into

evidence so that he could impeach her with numerous inconsistent statements. Because he was

unable to specifically identify the portions of A.G.’s testimony in the videotape that were

inconsistent with her trial testimony, the judge excluded the video.

                      RIGHT TO PRESENT A COMPLETE DEFENSE

       Appellant first complains that the trial court violated his Sixth Amendment right to present

a complete defense because the State did not call A.G. and the forensic interviewer as witnesses

during its case-in-chief. We disagree.

       A criminal defendant has a constitutional right to a meaningful opportunity to present a

complete defense. Anderson v. State, 301 S.W.3d 276, 280 (Tex.Crim.App. 2009), citing Crane

v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); see also U.S. CONST.

AMEND. VI, XIV.           The Sixth Amendment “guarantees an opportunity for effective

cross-examination, not cross-examination that is effective in whatever way, and to whatever

extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88


                                                 3
L.Ed.2d 15 (1985)(per curiam)[Emphasis in original]. Thus, the fact that a defendant was unable

to present his case to the extent and in the form he desired does not rise to constitutional error if he

was not prevented from presenting the substance of his defense to the jury. Potier v. State, 68

S.W.3d 657, 666 (Tex.Crim.App. 2002).

       Appellant has failed to establish that the trial court violated his Sixth Amendment right to a

meaningful opportunity to present a complete defense. Appellant does not cite, nor can we find,

any authority for the proposition that the State was required to call A.G. and the forensic

interviewer as witnesses during its case-in-chief. In fact, the State had no obligation to do so.

See Cooper v. California, 386 U.S. 58, 62 n.2, 87 S.Ct. 788 n.2, 791, 17 L.Ed.2d 730

(1967)(“contention . . . that (petitioner) was unconstitutionally deprived of the right to confront a

witness against him, because the State did not produce the informant to testify . . . we consider

absolutely devoid of merit.”); Chavez v. State, 508 S.W.2d 384, 386 (Tex.Crim.App.

1974)(holding that a defendant’s right to confrontation and cross-examination under Article I,

Section 10 of the Texas Constitution is not violated if the State decides not to call the complaining

witness to testify); Shelvin v. State, 884 S.W.2d 874, 877 (Tex.App.--Austin 1994, pet.

ref’d)(holding that, generally, the State is not required to call every conceivable witness with

knowledge of the case, as long as the defendant’s guilt is proven beyond a reasonable doubt).

This is because a defendant’s right “to be confronted by the ‘witnesses against him’ speaks to the

right of confrontation that a defendant enjoys, not to the state’s burden of production or the number

of witnesses required for conviction.” Shelvin, 884 S.W.2d at 877. “The State has a right to

prove its case in any way it may see fit under proper rules and regulations, and a defendant cannot

direct either the method or manner of proof.” Id. “Thus, the State cannot be forced to introduce


                                                   4
any particular evidence in making proof of its case.” Id. We overrule Issue One.

                                   EVIDENTIARY RULINGS

         In his second and third issues, Appellant complains about several evidentiary rulings. He

faults the exclusion of the videotape of A.G.’s forensic interview because it contained numerous

inconsistent statements that were admissible for purposes of impeachment. He also argues that

exclusion prevented him from adequately cross-examining and confronting A.G. about these

inconsistent statements. He next contends that the trial court’s instruction to the jury to disregard

A.G.’s testimony that she was sexually assaulted by Chaires impermissibly commented on the

weight of the evidence and prevented him from presenting his defense of an alternative

perpetrator.   Finally, Appellant posits that the trial court erroneously limited the scope of

Dr. Petzold’s testimony by not permitting her to testify about A.G.’s false memories, intellectual

disability, and mental capacity.

                                        Standard of Review

         We review evidentiary errors for an abuse of discretion. Shuffield v. State, 189 S.W.3d

782, 793 (Tex.Crim.App. 2006)(evidence generally); Weatherred v. State, 15 S.W.3d 540, 542

(Tex.Crim.App. 2000)(expert testimony); Matchett v. State, 941 S.W.2d 922, 940 (Tex.Crim.App.

1996)(cross-examination). A trial court abuses its discretion only when its decision lies “outside

the zone of reasonable disagreement.” Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App.

2007).

                           Exclusion of Forensic Interview Videotape

         As we have noted, Appellant argues that the videotape should have been admitted so that

he could have impeached her with the numerous inconsistent statements. A “prior inconsistent


                                                 5
statement” is a prior statement made by a witness that is inconsistent with that witness’s testimony

at trial. See TEX.R.EVID. 613(a). Rule of Evidence 613(a) permits a party to impeach a witness

with a prior inconsistent statement. See TEX.R.EVID. 613(a); Lopez v. State, 86 S.W.3d 228,

230 (Tex.Crim.App. 2002). To qualify for admission under Rule 613(a), the trial court must be

persuaded that the statements are indeed inconsistent. Lopez, 86 S.W.3d at 230. Thus, for

A.G.’s testimony in her forensic interview to be admitted as a prior inconsistent statement,

Appellant was required to establish that A.G.’s prior statements were inconsistent with her trial

testimony.

       Appellant has failed to so establish. Rather than specifically identify the portions of

A.G.’s testimony in the forensic interview that were inconsistent with her trial testimony at trial,

Appellant proffered that the entire video should be admitted because, by his count, there were

twenty-five inconsistencies “within that tape.”       The proffer of evidence on this basis –

inconsistencies in the forensic interview – was insufficient to establish that A.G.’s statements on

the videotape were inconsistent with her testimony at trial. Consequently, the trial court’s

decision to exclude the videotape was not outside the zone of reasonable disagreement. The trial

court properly concluded that Rule 613 did not authorize admission of the videotape. See Lopez,

86 S.W.3d at 230.

             Limitation on Expert’s Testimony and on Cross-Examination of Victim

       Appellant challenges the limitations imposed by the trial court that (1) prevented him from

adequately cross-examining and confronting A.G. by not permitting him to question her about her

inconsistent statements, and (2) prevented his expert from testifying about A.G.’s false memories,

intellectual disability, and mental capacity. The Sixth Amendment guarantees a defendant the


                                                 6
right to confront the witnesses against him. U.S. CONST. AMEND. VI; Pointer v. Texas, 380

U.S. 400, 406, 85 S.Ct. 1065, 1069, 13 L.Ed.2d 923 (1965). A trial court violates a defendant’s

right of confrontation if it improperly limits appropriate cross-examination. Carroll v. State, 916

S.W.2d 494, 497 (Tex.Crim.App. 1996). The right to cross-examination extends to any matter

that could reflect on the witness’s credibility. Virts v. State, 739 S.W.2d 25, 28-9 (Tex.Crim.App.

1987). The right of an accused to cross-examine a testifying state’s witness includes the right to

impeach the witness with relevant evidence that might reflect bias, interest, prejudice, inconsistent

statements, traits of character affecting credibility, or evidence that might go to any impairment or

disability affecting the witness’s credibility. Id. at 29.

       The trial court has broad discretion to impose reasonable limits on cross-examination to

avoid harassment, prejudice, confusion of the issues, endangering the witness, and the injection of

cumulative or collateral evidence. Lopez v. State, 18 S.W.3d 220, 222 (Tex.Crim.App. 2000).

Pursuant to Rule of Evidence 611, which governs the interrogation and presentation of witnesses at

trial, the trial court has reasonable discretion to control the mode and order of interrogating

witnesses and presenting evidence, including whether to permit a witness to be cross-examined on

a matter that is relevant to an issue. See TEX.R.EVID. 611(a), (b).

       To establish that the trial court erred in excluding evidence and preserve the complaint for

appellate review, the proponent must either perfect an offer of proof or a bill of exceptions or

demonstrate that the substance of the excluded evidence was apparent from the context within

which questions were asked.         TEX.R.EVID. 103; Guidry v. State, 9 S.W.3d 133, 153

(Tex.Crim.App. 1999). An informal bill will suffice as an offer of proof when it includes a

concise statement of what the evidence would show. Love v. State, 861 S.W.2d 899, 901


                                                  7
(Tex.Crim.App. 1993). When counsel intends to rely upon an informal bill to preserve error, the

bill must include a summary of the proposed evidence. Id.

         Appellant has failed to preserve his complaints for appellate review. He never made a

formal offer of proof as to what questions he would have asked -- and what testimony he would

have elicited -- from A.G. and Dr. Petzold had he been permitted to question them as he desired.

Likewise, he never summarized what the evidence would have shown had he been permitted to

cross-examine A.G. about the inconsistencies in her forensic interview and to question Dr. Petzold

regarding A.G.’s false memories, intellectual disability, and mental capacity. Defense counsel’s

comments that he counted twenty-five inconsistencies in A.G.’s forensic interview and that they

are “indications of [A.G.’s] inability to hold a memory and accurately recount [it]” do not

constitute a formal offer of proof or an informal bill because they do not reveal the substance of the

excluded evidence. Without an offer of proof or informal bill, we cannot conduct a proper harm

analysis.

                          Instruction to Jury to Disregard Victim’s Testimony

         Appellant next argues that the trial court’s instruction to disregard A.G.’s testimony that

she had been sexually assaulted by Chaires impermissibly commented on the weight of the

evidence and denied him the right to present his defense that an alternative perpetrator committed

the charged offense. Evidentiary rulings rarely rise to the level of denying the fundamental

constitutional right to present a meaningful defense. 3 Potier v. State, 68 S.W.3d 657, 659


3
  As established above, evidentiary rulings are ordinarily reviewed for abuse of discretion. See Shuffield, 189 S.W.3d
at 793. There is a split of authority, however, on whether that standard is appropriate when the right to present a
complete defense is implicated. Some intermediate appellate courts have applied a de novo standard of review in
such cases. See e.g., Campos v. State, 186 S.W.3d 93, 96 (Tex.App.--Houston [1st Dist.] 2005, no pet.); Wilson v.
State, 151 S.W.3d 694, 697 (Tex.App.--Fort Worth 2004, pet. ref’d); Muttoni v. State, 25 S.W.3d 300, 304
(Tex.App.--Austin 2000, no pet.). The Court of Criminal Appeals, on the other hand, has applied an
abuse-of-discretion standard. See Miller v. State, 36 S.W.3d 503, 507 (Tex.Crim.App. 2001). Here, neither
                                                          8
(Tex.Crim.App. 2002). A trial court’s ruling excluding evidence may rise to the level of a

constitutional violation if the ruling excludes otherwise relevant and reliable evidence that “‘forms

such a vital portion of the case that exclusion effectively precludes the defendant from presenting a

defense.’” Wiley v. State, 74 S.W.3d 399, 405 (Tex.Crim.App. 2002). Regarding “alternative

perpetrator evidence,” a defendant has the right to attempt to establish his innocence by showing

that someone else committed the crime. Id. at 406. To do so, he must show that 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.

         Article 38.05 of the Code of Criminal Procedure statutorily prohibits a judge from

commenting on the weight of the evidence. See TEX.CODE CRIM.PROC.ANN. art. 38.05

(West 1979). To constitute reversible error, the comment must be reasonably calculated to

benefit the State or to prejudice the rights of the defendant. Becknell v. State, 720 S.W.2d 526,

531(Tex.Crim.App. 1996).

         Appellant has not shown a nexus between the crimes charged and the alleged “alternative

perpetrator.” Appellant was tried for the aggravated sexual assaults of A.G. by penetrating her

vagina with his finger and by penetrating her mouth with his penis. Although A.G. testified on

direct examination that Chaires put his penis in her mouth, she testified on cross that Chaires did

not in fact do so, but rather pulled down his pants and exposed his penis, which she then touched

with her hand when he laid her on top of him. Significantly, A.G. never recanted her allegation



Appellant nor the State argues for de novo review of the trial court’s decision to instruct the jury to disregard A.G.’s
testimony that she had been sexually assaulted by Chaires. In their briefs, both parties posit that the appropriate
standard of review for evidentiary rulings is abuse of discretion. Since neither party raised the issue of whether a
different standard of review applies, we need not address it.
                                                           9
that Appellant sexually assaulted her and was adamant on cross that Appellant did so by covering

her eyes with a bandana and placing his penis in her mouth. Moreover, Appellant did not adduce

any evidence excluding him as a perpetrator. Even if the evidence tended to show that Chaires

assaulted A.G., the evidence cannot be used to infer that Appellant did not abuse A.G. in the

particular incidents charged. See Ruiz v. State, 272 S.W.3d 819, 830 (Tex.App.--Austin 2008, no

pet.)(noting that even if alleged alternative perpetrator had abused child, “that would not bear on

whether appellant also abused her.”). Accordingly, the excluded testimony was not sufficient, on

its own or in combination with other evidence in the record, to show a nexus between the crimes

charged and Chaires. See Wiley, 74 S.W.3d at 406. Without the required nexus, the evidence did

not support Appellant’s alternative perpetrator defense, and the trial court did not abuse its

discretion by instructing the jury to disregard A.G.’s testimony.

       Likewise, Appellant has failed to establish that the trial court’s instruction to the jury to

disregard A.G.’s testimony that she had been sexually assaulted by Chaires was a comment on the

weight of the evidence. As established above, when the trial court instructed the jury to disregard,

it did so without making any additional comment. The trial court was merely informing the jury

of its ruling. The information imparted to the jury was value-neutral and was not reasonably

calculated to benefit the State or prejudice Appellant. See Rosales v. State, 932 S.W.2d 530, 538

(Tex.App.--Tyler 1995, pet. ref’d)(holding that trial court’s sua sponte instruction to the jury to

disregard certain defense testimony regarding appellant’s cooperation with authorities was not a

comment on the weight of the evidence, but rather, a value-neutral verbalization to the jury of its

ruling). Appellant has not shown that the trial court abused its discretion by instructing the jury to

disregard A.G.’s testimony. We overrule Issues Two and Three and affirm the judgment of the


                                                 10
trial court.



February 13, 2013
                                             ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J. (Not Participating)

(Do Not Publish)




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