                                    NO. 07-06-0108-CR

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                    AUGUST 23, 2007

                          ______________________________


                         JOHNNY J. HERNANDEZ, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE


                        _________________________________

            FROM THE 137TH DISTRICT COURT OF LUBBOCK COUNTY;

            NO. 2005-409,597; HONORABLE CECIL G. PURYEAR, JUDGE

                          _______________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                MEMORANDUM OPINION


       Following a plea of not guilty, Appellant, Johnny J. Hernandez, was convicted by a

jury of aggravated assault with a deadly weapon and punishment was assessed at twenty-

five years confinement. The victim of the assault was Abel (“Gordy”) Barajas, Jr., a three

year old child. By his first four issues, Appellant contends the trial court erred in refusing
to allow defense counsel to question four separate witnesses, Amy Ramirez, Melissa

Anbaz, Melinda Medina, and Kristi Hagood, as to the circumstances surrounding a 2004

Child Protective Services (CPS) investigation alleging physical abuse against the same

victim in the underlying case. By his fifth issue, he alleges the trial court erred in denying

his right to present a defensive theory by precluding questioning of Amy Ramirez and

Melissa Anbaz regarding the 2004 CPS investigation. Finding no reversible error, we

affirm.


                                          Background


          At the time of the offense, Appellant was living with Amy Ramirez, their infant child,

Aeriel, and Amy’s two other children from a previous marriage, Amaris, who was four years

old, and Gordy, who was three. Amy worked at a restaurant that was owned by her sister,

Melissa.      Another of Amy’s sisters, Melinda, was also employed at the restaurant.

Appellant worked nights, and he and Amy had one vehicle between them. On March 10,

2005, Appellant dropped Amy off at work shortly before the lunch hour and returned home

with the three children. Amy had planned for her former mother-in-law to pick up the

children later that day for a visit. After dropping Amy off at work, Appellant was supposed

to take the children home and clean them up for the visit.


          Later in the day, Appellant returned to the restaurant and dropped off the children.

Gordy was dressed in shorts, and Amy noticed that his legs were bruised, red, and hot to



                                                2
the touch. Gordy, who was described at trial as a hyper child, was unusually quiet that

afternoon. When questioned by Amy, he told her he had fallen in the tub.


       Both of Amy’s sisters testified that when they arrived at work that afternoon, Amy

asked them to look at Gordy’s legs. They described them as red and warm to the touch

and also noticed that Gordy was unusually quiet. Melissa added that his legs had identical

marks on them.


       Sometime after 5:00 p.m., Appellant returned to the restaurant to pick up Amy and

the children. According to Amy’s testimony, she did not call her former mother-in-law that

day about the visit. When Amy questioned Appellant about Gordy’s legs, he claimed not

to have noticed them.


       Concerned about Gordy, Melinda told her mother and some other family members

about his injuries. Chris, Amy’s brother, decided to report the incident to CPS. This was

not the first time CPS had been called to investigate allegations of abuse committed

against Gordy. On May 18, 2004, CPS had investigated Amy’s mother for physical abuse

of Gordy. The final disposition of the case, however, ruled out abuse.


       As a defensive theory at trial, Appellant claimed that Gordy’s four-year-old sister,

Amaris, had inflicted the injuries to Gordy’s legs after chasing him around with a hairbrush

or ruler. The evidence, however, demonstrated that Gordy’s injuries were consistent with

having been spanked with a looped belt. Additionally, the detective investigating the case


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and the CPS investigator both testified that, in their opinion, although Amaris was a year

older and taller than Gordy, she would not have had the strength to subdue him and inflict

the injuries he sustained.


       During the course of the trial, defense counsel repeatedly requested permission to

question certain witnesses about the 2004 CPS investigation. Defense counsel’s requests

were based on four theories: (1) that the State “opened the door,” (2) the credibility of the

witnesses, (3) Amy’s motive, and (4) Rule 404(b) of the Texas Rules of Evidence.1 The

trial court denied all requests. By his first four issues, Appellant maintains the trial court

erred by refusing to allow him to question Gordy’s mother, Amy (Issue One); Gordy’s aunts,

Melissa (Issue Two) and Melinda (Issue Three); and Kristi Hagood (Issue Four), a CPS

supervisor, about the 2004 CPS investigation. This error, he argues, harmed him by

affecting his substantial rights. We disagree.


       The record contains bills of exception by Amy and Melissa. However, no bills were

made reflecting what Melinda or Hagood would have testified to regarding the 2004 CPS

investigation. The purpose of a bill of exception is to enable an appellate court to review

the propriety of a trial court’s ruling excluding evidence. Tex. R. App. P. 33.2. See also


       1
        On appeal, Appellant contends he should have been allowed to question Amy and
her sister Melissa pursuant to Rule 613(b) of the Texas Rules of Evidence. Rule 613(b)
permits examination of a witness concerning bias or interest. At trial, however, Appellant
did not request to proceed under Rule 613(b). It is well settled that the legal basis of a
complaint raised on appeal cannot vary from that raised at trial. Heidelberg v. State, 144
S.W.3d 535, 537 (Tex.Crim.App. 2004). Thus, we will not address any arguments based
on Rule 613(b).

                                              4
Stewart v. State, 686 S.W.2d 118, 122 (Tex.Crim.App. 1984), cert. denied, 474 U.S. 866,

106 S.Ct. 190, 88 L.Ed.2d 159 (1985); Hooks v. State, 203 S.W.3d 861, 864

(Tex.App.–Texarkana 2006, pet. ref’d), cert. denied, 535 U.S. 1085, 122 S.Ct. 1977, 152

L.Ed.2d 1034 (2002). Error in the exclusion of evidence may not be urged unless the

proponent perfected an offer of proof or a bill of exception. Guidry v. State, 9 S.W.3d 133,

153 (Tex.Crim.App. 1999), cert. denied, 531 U.S. 121 S.Ct. 98, 148 L.Ed.2d 57 (2000).

Failure to make an offer of proof or a bill of exception where the record does not show what

the excluded testimony would have been waives the complaint for appellate review. Tex.

R. App. P. 33.1(a)(1). See also Guidry, 9 S.W.3d at 153. Therefore, we find that issues

three and four were not preserved for review.


       In reviewing issues one and two, we will review the testimony presented by Amy and

Melissa in their bills of exception in light of the theories pursued by Appellant at the trial

court level. In this light, we conclude that complaints regarding the trial court’s failure to

allow defense counsel to question Amy or Melissa concerning the 2004 CPS investigation

do not present reversible error.


                                   Standard of Review


       An appellate court reviews a trial court’s evidentiary ruling based upon an abuse of

discretion standard. Sauceda v. State, 129 S.W.3d 116, 120 (Tex.Crim.App. 2004). As

long as the trial court's ruling is within the zone of reasonable disagreement, there is no

                                              5
abuse of discretion and the trial court's ruling will be upheld. See Rachal v. State, 917

S.W .2d 799, 807 (Tex.Crim.App.1996), cert. denied, 519 U.S. 1043, 117 S.Ct. 614, 136

L.Ed.2d 539 (1996).


                 RULE OF EVIDENCE 107 - “OPENING THE DOOR”


       Rule 107 of the Texas Rules of Evidence, known as the rule of optional

completeness, permits an opponent to correct any misleading impressions left with the jury

through the introduction of only a portion of evidence. Simpson v. State, 975 S.W.2d 364,

368 (Tex.App.–Waco 1998, no pet.). It allows an opponent to question a witness on any

subject which needs to be “fully understood” by the jury. Id. at 369.


                          Amy’s Bill of Exception Testimony


       Appellant contends he should have been allowed to question Amy about the 2004

CPS investigation based on the State “opening the door” as to why Amy did not want her

former mother-in-law to see Gordy on the day he was injured. According to Amy’s bill of

exception testimony, her former mother-in-law had reported the alleged abuse of Gordy in

2004, and she did not want her to find out about Gordy’s current injuries for fear she would

again report the incident to CPS. However, the 2004 investigation focused on Amy’s

mother as a suspect, and the investigation ruled out any abuse.




                                             6
       The 2004 CPS investigation of Amy’s mother was not relevant or material to the

offense for which Appellant was being tried. Amy’s testimony during direct examination did

not leave a misleading impression with the jury which needed clarification in order to be

more fully understood. We conclude the trial court did not abuse its discretion in denying

Appellant’s request to question Amy concerning the 2004 CPS investigation based upon

the rule of optional completeness.


                         Melissa’s Bill of Exception Testimony


       According to Appellant, the trial court’s refusal to allow him to question Melissa

about the 2004 investigation left the jury with the impression that this was the first time

Gordy had been abused. Melissa’s bill of exception testimony was brief. In that testimony

Melissa acknowledged that Amy’s mother was a suspect in the 2004 child abuse

investigation and that Amy was part of the investigation. However, she also testified she

was not too familiar with the case. She could not recall seeing bruises on Gordy in 2004

other than those resulting from “regular play” and she stated that she only saw Gordy

occasionally when Amy was going to or leaving from work.


       Neither Amy’s nor Melissa’s testimony was part of an act which needed to be more

fully understood in order to avoid the risk of leaving a misleading impression with the jury.

The allegation of abuse against Gordy in 2004 by his maternal grandmother and CPS’s

investigation of that incident were not relevant to the investigation which lead to Appellant

being charged with abusing Gordy.

                                             7
                RULE OF EVIDENCE 404(b) - CREDIBILITY - MOTIVE


       We are not convinced that Rule 404(b) even applies to witnesses and instead, will

address Appellant’s motive, character, and credibility arguments under Rules 607 and 608

of the Texas Rules of Evidence. See Tex. R. Evid. 404(a)(3).2


                             Rules of Evidence 607 and 608


       Rule 607 provides that a witness’s credibility may be attacked by any party. Rule

608, however, prohibits inquiry on cross-examination into specific instances of conduct of

a witness for the purpose of attacking credibility.


       Great latitude should be allowed in cross-examining witnesses to reveal possible

bias, prejudice, or motive to falsify testimony. Janeka v. State, 739 S.W.2d 813, 830

(Tex.Crim.App. 1987). Equally axiomatic is the trial court’s wide discretion in determining

the parameters of cross-examination to show bias. Chambers v. State, 866 S.W.2d 9, 27

(Tex.Crim.App. 1993), cert. denied, 511 U.S. 1100, 114 S.Ct. 1871, 128 L.Ed.2d 491

(1994).




       2
        See generally Martinez v. State, No. 74292, 2003 WL 22508081, at *4
(Tex.Crim.App. Nov. 5, 2003) (not designated for publication) (providing that “[e]ven
assuming, arguendo, that Rule of Evidence 404(b) applies to witnesses, the trial judge was
within his discretion . . . .)

                                             8
                                            Amy


       Appellant attacks Amy’s credibility for several reasons: (1) she did not report the

incident involving Appellant to CPS; (2) the statement she gave to law enforcement

contained inconsistencies with her trial testimony; and (3) she violated a Safety Plan by

allowing her children to be around Appellant. Appellant did not establish the relevance of

the 2004 CPS investigation involving Amy’s mother to the charges filed against him. Rule

402 of the Texas Rules of Evidence provides that evidence which is not relevant is

inadmissible. Additionally, Rule 608 prohibited Appellant from cross-examining Amy on

specific instances of conduct for the purpose of attacking her credibility. We conclude the

trial court did not abuse its discretion in denying Appellant’s request to question Amy

regarding the 2004 CPS investigation.


                                          Melissa


       Appellant alleges that Melissa’s bill of exception testimony reflects a bias toward her

mother. Specifically, he urges that Melissa became evasive and could not recall seeing

bruises on Gordy in 2004 once she realized that defense counsel’s line of questioning was

directed at the allegations against her mother in the 2004 case. Throughout his brief,

Appellant fails to connect the relevance of the 2004 investigation involving Gordy’s

grandmother to the underlying case against Appellant. Gordy’s grandmother was not a

witness in the underlying case; therefore, her credibility was not an issue in this case.




                                              9
                  CONCLUSION - ISSUES ONE THROUGH FOUR


      We conclude the trial court did not abuse its discretion in denying Appellant’s

request to question Amy or Melissa about the 2004 CPS investigation. Issue one

complaining about Amy and issue two regarding Melissa are overruled. As mentioned

previously, no bills of exception were made of Melinda’s or Hagood’s testimony and thus

Appellant’s complaints about them were not preserved for review. Accordingly, issues

three and four are also overruled.


                                      ISSUE FIVE


      By his fifth issue, Appellant asserts he was denied the right to present a defensive

theory because of the trial court’s denial of questions to Amy and Melissa regarding the

2004 CPS investigation. Specifically, he argues he was not allowed to put on evidence

that another adult could have caused Gordy’s injuries. We disagree.


      An accused has the right to attempt to establish his innocence by showing that

someone else committed the crime; however, he must still show that his proffered evidence

regarding the alternative perpetrator is sufficient to show a nexus between the crime

charged and the alleged alternative perpetrator. Wiley v. State, 74 S.W.3d 399, 405

(Tex.Crim.App. 2002), cert. denied, 537 U.S. 949, 123 S.Ct. 415, 154 L.Ed.2d 294 (2002).

See also Martinez v. State, 212 S.W.3d 411, 423 (Tex.App.–Austin 2006, pet. ref’d).




                                           10
       At trial, Appellant’s defensive theory was that Amaris, Gordy’s sister, had inflicted

the injuries to Gordy’s legs with either a hairbrush or ruler. On appeal, he argues that he

should have been allowed to inquire into the 2004 CPS investigation to establish whether

Amy, or another adult, could have been the perpetrator. The evidence established that

Amy was at work and that Appellant was the only adult with the children when Gordy

sustained his injuries. Additionally, the disposition of the 2004 CPS investigation ruled out

abuse altogether and would not have been relevant in showing that Amy, who was not

even a suspect in that investigation, or another adult could have abused Gordy. Appellant

has not established that the trial court’s decision excluded otherwise relevant evidence that

was such a vital portion of his case as to effectively preclude him from presenting a

defense. See Wiley, 74 S.W.3d at 405. We conclude the trial court’s decision to exclude

evidence regarding the 2004 CPS investigation did not deny him the right to present a

defense. Issue five is overruled.


       Consequently, the trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice



Do not publish.




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