                            NUMBER 13-18-00003-CR

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

FLABIANO MAYORGA, JR.
A/K/A FLABIANO MAYORGA,                                                     Appellant,

                                           v.

THE STATE OF TEXAS,                                                          Appellee.


                   On appeal from the 404th District Court
                        of Cameron County, Texas.



                        MEMORANDUM OPINION
            Before Justices Benavides, Longoria, and Hinojosa
                Memorandum Opinion by Justice Longoria

      Appellant Flabiano Mayorga, Jr. a/k/a Flabiano Mayorga was convicted for

continuous sexual abuse of a child and aggravated sexual assault of a child. See TEX.

PENAL CODE ANN. §§ 21.02, 22.021(a)(2)(B) (West, Westlaw through 2017 1st C.S.). By

three issues, Mayorga argues that: (1) the trial court improperly commented on his failure
to testify; (2) the trial court abused its discretion by restricting his cross-examination of a

witness; and (3) the trial court and the State improperly shifted the burden of proof. We

affirm.

                                                 I. BACKGROUND

          Mayorga was indicted on charges of continuous sexual assault of a child (count

one) and aggravated sexual assault of a child (count two).                               See id. §§ 21.02,

22.021(a)(2)(B). The child complainant in both counts is G.M., who was younger than

fourteen at the time of the alleged offenses. 1 Count one alleged that Mayorga committed

multiple acts of indecency, with the intent to arouse or gratify his sexual desire, against

G.M. between May 1, 2010 and November 1, 2015. Count two alleged that on November

18, 2015, Mayorga committed a single act of aggravated sexual assault by causing the

sexual organ of G.M. to contact the sexual organ of Mayorga.

          G.M.’s mother testified at the trial.                The following exchange occurred with

Mayorga’s counsel:

          [Mayorga’s
          Counsel]:          Okay. Now, let’s get to when you actually get to the hospital.
                             Okay. You were visited by either a psychologist or someone
                             that suggested that you would have to take medication with
                             regards to, you know—I’m not going to say mental issues but
                             the issues that you were dealing with?

          [State]:           Your Honor, I’m going to object to relevance. We’re going off
                             on a big tangent, and it’s not relevant.

          [Mayorga’s
          Counsel]:          Judge, it’s our position that this is the segue to her jealousy
                             for her irrational acts that she’s committed, for example,
                             jumping out of the van to jumping on my client’s vehicle
                             because—


          1   To protect the identity of the child, we refer to her using a pseudonym. See TEX. R. APP. P. 9.8(b).
                                                          2
[Court]:     Well, ask her specifically. I’ll give you a little bit of leeway.

[Mayorga’s
Counsel]:    Ma’am, you suffer from—from mental issues where you are—
             you are a very jealous wife, correct?

[Mother]:    No.

[Mayorga’s
Counsel]:    In fact, when Mr. Mayorga would try to go to work, you would
             get on the vehicle in such a way that he couldn’t leave,
             correct?

[Mother]:    No.

[Mayorga’s
Counsel]:    In fact—.

[Court]:     All right. I’m going to stop you here. Unless you have
             evidence to contradict this that you’re—you’re going into
             representations of testimony that the Defendant is not
             required to give. Do you understand what I’m saying? In
             other words—

[Mayorga’s
Counsel]:    Yes, Judge.

[Court]:     —the Fifth Amendment is such that your client is not going to
             testify, but in your questioning you may not infer that if he
             testified this would be his testimony. So I’m going to subject
             her to recall based on what happens with the Fifth
             Amendment.

[Mayorga’s
Counsel]:    Yes, Judge.

[Court]:     All right. So it’s done.

[Mayorga’s
Counsel]:    Right. Just for—in our case-in-chief, Judge, we get to call the
             witnesses—

[Court]:     Of course.

[Mayorga’s

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      Counsel]:     —that have knowledge. So to suggest that it has to come
                    from a specific witness, my objection is—

      [Court]:      Well, at this point in time until there is independent testimony,
                    I’m stopping it; and I’ll recall her in your case-in-chief on this
                    issue if you have independent testimony.

      [Mayorga’s
      Counsel]:     Judge, the only way she could be recalled on my case-in-chief
                    is if they—if they’re going to call her as a rebuttal.

      [Court]:      I’m going to subject her. She’s here under subpoena. I’m
                    ordering her to be available for your case-in-chief.

      [Mayorga’s
      Counsel]:     Very well, Judge. So the Court is not going to allow me to at
                    least lay the foundation for whatever witnesses that I have?

      [Court]:      No, not at this point in time because I don’t have anything to
                    substantiate where your position is coming from other than to
                    infer if the Fifth Amendment is—is exercised or not exercised.

      The jury also heard testimony from G.M. that Mayorga touched her vagina for the

first time when she was six years old. She testified that it happened multiple times over

the following years. Joanna Frausto, the forensic interviewer at Maggie’s House, a

children’s advocacy center, testified that she interviewed G.M. in 2015 when G.M. was

eleven. According to Frausto, G.M. told her that Mayorga used his fingers to move up

her legs and touch her private, that “he would grab my boobs,” that he put “[h]is private

or thing in my private,” and that he put his private part in her butt and it hurt. The jury

heard evidence that G.M.’s hymen was torn in two places. G.M., her siblings, and her

mother all testified that Mayorga was physically abusive. G.M. further testified that she

waited so long to make an outcry statement because she was afraid that Mayorga would

hurt her mother.




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       The jury found Mayorga guilty on both counts and assessed punishment of fifty

years’ imprisonment in the Institutional Division of the Texas Department of Criminal on

each count. The trial court sentenced Mayorga accordingly and ordered the sentences

to run consecutively. This appeal followed.

                     II. COMMENT ON DEFENDANT’S FAILURE TO TESTIFY

       In his first issue, Mayorga argues that the trial court violated his constitutional rights

by commenting on his failure to testify.

A. Standard of Review and Applicable Law

               Neither the trial judge nor the prosecutor can comment on the failure
       of an accused to testify. Such a comment violates the privilege against self-
       incrimination and the freedom from being compelled to testify contained in
       the Fifth Amendment of the United States Constitution and Article I, § 10, of
       the Texas Constitution.

       ...

       To violate the right against self-incrimination, the offending language must
       be viewed from the jury’s standpoint and the implication that the comment
       referred to the defendant’s failure to testify must be clear. It is not sufficient
       that the language might be construed as an implied or indirect allusion. The
       test is whether the language used was manifestly intended or was of such
       a character that the jury would necessarily and naturally take it as a
       comment on the defendant’s failure to testify. In applying this standard, the
       context in which the comment was made must be analyzed to determine
       whether the language used was of such character.

Bustamante v. State, 48 S.W.3d 761, 764–65 (Tex. Crim. App. 2001); see U.S. CONST.

amend. V; TEX. CONST. art. I, § 10; see also Randolph v. State, 353 S.W.3d 887, 891

(Tex. Crim. App. 2011) (“[T]he implication that the State referred to the defendant’s failure

to testify must be a clear and necessary one. If the language might reasonably be

construed as merely an implied or indirect allusion, there is no violation.”).




                                               5
         Generally, commenting on the defendant’s failure to testify is an error of

constitutional magnitude. Snowden v. State, 353 S.W.3d 815, 818 (Tex. Crim. App.

2011).     However, alluding to the defendant’s failure to testify is not an error if the

defendant ultimately testifies. See Bustamante, 48 S.W.3d at 766 (citing Terry v. State,

489 S.W.2d 879, 881 (Tex. Crim. App. 1973)). The State may also properly comment on

a defendant’s failure to produce evidence, as long as the remarks do not fault the

defendant for failing to testify. See Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim.

App. 1995); Orellana v. State, 381 S.W.3d 645, 656 (Tex. App.—San Antonio 2012, pet.

ref’d) (observing that it does not inappropriately shift the burden of proof when the State

comments on the defendant’s failure to present favorable evidence).

         But when a constitutional error has been committed, “a reviewing court must

analyze the error under Rule 44.2(a), reversing the judgment unless it can conclude

beyond a reasonable doubt that the error did not contribute to the defendant’s conviction

or punishment.” Snowden, 353 S.W.3d at 818. In conducting a harm analysis in this

scenario, the reviewing court may consider “the nature of the error (e.g., erroneous

admission or exclusion of evidence, objectionable jury argument, etc.), whether it was

emphasized by the State, the probable implications of the error, and the weight the jury

would likely have assigned to it in the course of its deliberations.” See id. at 822. The

timing of the comment is another factor to consider. See Bustamante, 48 S.W.3d at 766.

B. Analysis

         Mayorga argues that he was denied a fair trial because of the trial court’s allusion

to his invocation of his Fifth Amendment rights. Mayorga complains mostly of the above-

quoted conversation that occurred while questioning G.M.’s mother, which was in the

                                              6
jury’s presence, but Mayorga also complains of several discussions that occurred outside

of the jury’s presence. However, by their very nature, alleged allusions to a defendant’s

failure to testify that occur outside the jury’s presence cannot be harmful because viewing

the error from the “jury’s viewpoint,” the jury never heard the improper comment. See

Randolph, 353 S.W.3d at 891; Bustamante, 48 S.W.3d at 764–65. And if the jury never

heard the comment, the statement could not have contributed to the defendant’s

conviction. See Snowden, 353 S.W.3d at 818. Additionally, concerning the trial court’s

comments in front of the jury, there is no error because Mayorga testified at trial. See

Bustamante, 48 S.W.3d at 766 (confirming that a judge’s comment inquiring whether the

defendant was going to testify “could not be considered by the jury as an allusion to a

failure that did not occur because the defendant did not fail to testify”).

       Furthermore, even if there was any error, we conclude beyond a reasonable doubt

that any such error did not contribute to Mayorga’s conviction. Snowden, 353 S.W.3d at

818. First, we note that the State never emphasized the judge’s brief allusion to the

defendant’s failure to testify. Snowden, 353 S.W.3d at 818. Also, the judge made the

complained-of statements in the context of his duties under Rule 103(d) of the Texas

Rules of Evidence.      Under Rule 103, “the court must conduct a jury trial so that

inadmissible evidence is not suggested to the jury by any means.” TEX. R. EVID. 103(d).

At the time the trial court made the comment, it was unsure if the defendant would

exercise his Fifth Amendment right and so the trial court attempted to prevent Mayorga

from introducing inadmissible evidence. Thus, the trial court’s comments were not a

direct comment on Mayorga’s failure to testify; it was only an indirect and unclear

reference made by the trial court in giving justification for preventing a line of questioning

                                              7
it deemed inappropriate. See Bustamante, 48 S.W.3d at 764–65; Jackson v. State, 501

S.W.2d 660, 662 (Tex. Crim. App. 1973) (concluding there was no error because the

State, at the time it made the allegedly improper comment, was unaware whether the

defendant would testify or not and the comment was only an indirect allusion to the

defendant’s failure to testify).

       Lastly, the evidence against Mayorga was substantial, if not overwhelming. The

jury heard testimony that Mayorga began to sexually abuse G.M. when she was only six

years old. The jury was presented with the nurse’s report that G.M.’s hymen was torn in

two places. Frausto averred that G.M. made an outcry statement to her about how

Mayorga penetrated her vagina and her butt using his penis and his digits. The jury

additionally heard that G.M. did not tell anyone originally because she was afraid that

Mayorga would injure her mother. Therefore, in light of these factors, we are confident

beyond a reasonable doubt that the trial court’s comments made no contribution to the

jury’s determination that Mayorga was guilty. Snowden, 353 S.W.3d at 825. We overrule

Mayorga’s first issue.

                  III. TRIAL COURT’S ABILITY TO LIMIT CROSS-EXAMINATION

A. Standard of Review and Applicable Law

       We review a trial court’s decision to limit cross-examination for an abuse of

discretion. Walker v. State, 300 S.W.3d 836, 843 (Tex. App.—Fort Worth 2009, pet.

ref’d). The trial court abuses its discretion when its decision goes beyond the zone of

reasonable disagreement. See id.

       Relevant evidence is generally admissible. See TEX. R. EVID. 402. Any possible

bias or attack on the credibility of a witness is always relevant. See Billodeau v. State, 277

                                              8
S.W.3d 34, 42–43 (Tex. Crim. App. 2009). Thus, trial courts should give defendants

“great latitude to reveal any relevant facts that reflect on the credibility of the witness.”

Walker, 300 S.W.3d at 844; see Johnson v. State, 433 S.W.3d 546, 551 (Tex. Crim. App.

2014) (“[I]t is not within a trial court’s discretion to prohibit a defendant from engaging in

otherwise appropriate cross-examination designed to show a prototypical form of bias on

the part of the witness.”) (internal quotations omitted). However, it is still within the trial

court’s authority to impose reasonable limits on cross-examination. See Johnson, 433

S.W.3d at 552; Billodeau, 277 S.W.3d at 42–43 (“[T]he defendant is entitled, subject to

reasonable restrictions, to show any relevant fact that might tend to establish ill feeling,

bias, motive, interest, or animus on the part of any witness testifying against him.”)

(emphasis added); Walker, 300 S.W.3d at 843 (“[T]he Confrontation Clause guarantees

an opportunity for effective cross-examination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.”) (quoting Delaware v.

Fensterer, 474 U.S. 15, 20 (1985)). For example, a trial court may limit cross-examination

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

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

Walker, 300 S.W.3d at 845 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

B. Analysis

       Mayorga argues that the trial court erred by restricting his ability to cross-examine

G.M.’s mother. He asserts that the ability to fully question the mother on her bias, and

thus attack her credibility, was crucial to his ability present his defense. However, the

record indicates that the trial court gave Mayorga the opportunity to effectively cross-

examine the mother. See Walker, 300 S.W.3d at 843.

                                              9
       As we will discuss in greater detail below, Mayorga’s major defensive theory below

was that the allegations were all fabricated by G.M.’s mother out of jealousy. As an

attempt to show her bias and as an attempt to attack her credibility, Mayorga attempted

to reveal that G.M.’s mother would allegedly jump on the front of Mayorga’s vehicle to

prevent him from leaving her. Even though the State objected to the line of questions as

irrelevant, the State gave Mayorga leeway to demonstrate its relevance. See Walker,

300 S.W.3d at 845. The mother denied the allegations twice, but Mayorga persisted. The

trial court only interjected once it appeared that Mayorga was attempting to impeach the

mother with potentially inadmissible evidence. The trial court has a duty to prevent the

jury from hearing inadmissible evidence. TEX. R. EVID. 103(d). The trial court limited

Mayorga’s cross-examination in no fashion other than precluding the introduction of

inadmissible impeachment evidence. The trial court even emphasized to Mayorga that

the mother would be available to recall as a witness during Mayorga’s case-in-chief if he

wanted to impeach her with admissible evidence. We see nothing to suggest that the trial

court improperly impeded Mayorga’s from engaging in “otherwise appropriate cross-

examination.” Johnson, 433 S.W.3d at 551. Mayorga was given sufficient opportunity to

explore and reveal the mother’s potential bias. See Walker, 300 S.W.3d at 845. We

conclude that the trial court did not abuse its discretion in reasonably limiting Mayorga’s

cross-examination in this manner. See id. at 843. We overrule Mayorga’s second issue.

                           IV. SHIFTING THE BURDEN OF PROOF

A. Standard of Review and Applicable Law

       “The prosecution bears the burden of proving all elements of the offense charged,

and must persuade the factfinder ‘beyond a reasonable doubt’ of the facts necessary to

                                            10
establish each of those elements.” Niles v. State, 555 S.W.3d 562, 569 (Tex. Crim. App.

2018). Accordingly, any attempt to shift the burden of proof to the defendant may

constitute a violation of due process. See Jackson v. State, 17 S.W.3d 664, 674 (Tex.

Crim. App. 2000); see also Ki Chul Ha v. State, No. 08-16-00161-CR, 2018 WL 3454906,

at *5 (Tex. App.—El Paso July 18, 2018, no pet.) (mem. op., not designated for

publication).

       As discussed above, we will reverse the judgment when confronted with

constitutional error unless we can conclude beyond a reasonable doubt that the error did

not contribute to the defendant’s conviction or punishment. See Snowden, 353 S.W.3d

at 818.

B. Analysis

       Mayorga complains that the trial court and the prosecutor improperly shifted the

burden of proof to him. We have already quoted the trial court’s complained-of comments

above; Mayorga complains that the trial court gave the impression that he had to present

a defense and that his defense had to come from Mayorga himself. Concerning the

prosecutor’s alleged improper shifting of the burden of proof, the following exchange

transpired, in front of the jury, as the State questioned G.M.s’ mother:

       [State]:      Based on your conversation or based on what you understood
                     at that time, did you believe that [G.M.] had been molested?

       [Mayorga’s
       Counsel]:     Your Honor, I’m going to object as to, one, relevancy. It has
                     no bearing on the issue what she individually thought.

       [State]:      Your Honor, this is absolutely part of their defense that they’re
                     raising, the theory of their defense.

       [Mayorga’s

                                            11
       Counsel]:     Judge, I—Judge, I’m going to object that that’s—the fact that
                     counsel is raising that is suggesting—he’s shifting the burden
                     to us which is in clear violation of my client’s rights. To
                     suggest that we’re going to mount that defense or another
                     defense or any defense, it’s improper as, “This is their case-
                     in-chief”; and now he’s shifting the burden on us.

       [State]:      I’m not shifting the burden, Your Honor. He is cross-
                     examining in connection with this issue; and that’s why I’m
                     asking her if she—and as her parent, I’m allowed to elicit
                     whether or not she believed her daughter.

       [Court]:      Overruled as to her thought process.

       The comments by the State were not an attempt to shift the burden of proof to

Mayorga. During voir dire and pre-trial hearings and through cross-examination, Mayorga

presented as part of his defensive theory that it is a fairly common scenario “[w]here a

parent uses the kid to try and get another parent in trouble.” Mayorga asserted that G.M.’s

mother, “in a fit of jealousy,” fabricated the allegations against Mayorga as an attempt to

get him incarcerated for as long as possible. Mayorga ascribed the following motto to

G.M.’s mother: “If I can’t have [Mayorga], nobody can.” In response to Mayorga’s

assertions that G.M.’s mother told G.M. to fabricate these allegations against Mayorga,

the State was attempting to show that G.M.’s mother did not believe the allegations herself

until the nurse reports came back, showing that G.M.’s hymen was torn. Thus, the State

was merely responding to Mayorga’s defensive theory. See Jackson, 17 S.W.3d at 674

(observing that the State did not improperly shift the burden of proof to the defendant by

responding to defendant’s assertion that the State’s evidence was lacking). Also, the

State never insinuated that Mayorga had to prove his innocence by providing evidence

or witnesses. To the contrary, the State and the trial court both reiterated multiple times

throughout the trial that Mayorga had no duty to prove anything because the State carried

                                            12
the burden to prove its case beyond a reasonable doubt. The State’s comments did not

inappropriately shift the burden to Mayorga. See Jackson, 17 S.W.3d at 674; Orellana,

381 S.W.3d at 656.

       Likewise, the comments by the trial court during the questioning of G.M.’s mother,

which we quoted earlier, did not inappropriately shift the burden of proof to defendant.

The trial court never stated that Mayorga was required to present any evidence to defend

itself; rather, the trial court merely informed Mayorga that he could not impeach a witness

with evidence that was not before the jury. In other words, the trial court was properly

exercising its authority to prevent the jury from hearing inadmissible evidence. See TEX.

R. EVID. 103(d). The trial court did not give the jury the impression that Mayorga had to

present evidence, merely that if he chose to present evidence, he must do so in the proper

manner. Therefore, we conclude the trial court did not improperly shift the burden to

Mayorga. See Jackson, 17 S.W.3d at 674.

       But, even if we assume that the State’s and trial court’s comments improperly

shifted the burden of proof, we can still conclude beyond a reasonable doubt that any

such error did not contribute to Mayorga’s conviction. See Snowden, 353 S.W.3d at 818.

The jury was instructed, both by the State and by the trial court, multiple times that the

State bore the burden to prove Mayorga committed the alleged offenses beyond a

reasonable doubt. We presume the jury listened to and heeded such statements from

the court. See Orellana, 381 S.W.3d at 656 (citing Gamboa v. State, 296 S.W.3d 574,

580 (Tex. Crim. App. 2009)). Additionally, we have already concluded that the evidence

against Mayorga was substantial, if not overwhelming. In light of the evidence before the

jury and the instructions given by the trial court regarding the State’s burden of proof, we

                                            13
conclude beyond a reasonable doubt that even if there was any improper comment, it did

not contribute to Mayorga’s conviction. See Snowden, 353 S.W.3d at 818. We overrule

Mayorga’s third issue.

                                     V. CONCLUSION

       We affirm the trial court’s judgment.


                                                               NORA L. LONGORIA
                                                               Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
4th day of April, 2019.




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