      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-08-00760-CR



                                 Alfredo Soto Enriquez, Appellant

                                                   v.

                                    The State of Texas, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
       NO. 07-1580-K277, HONORABLE KEN ANDERSON, JUDGE PRESIDING



                             MEMORANDUM OPINION


                On June 25, 2008, a grand jury returned an indictment charging appellant

Alfredo Soto Enriquez with the felony offenses of continuous sexual abuse of a young child

(count 1), aggravated sexual assault of a child (counts 2-9), and indecency with a child by contact

(counts 10-11). Tex. Penal Code Ann. §§ 21.02, 22.021 (West Supp. 2008), § 21.11 (West 2003).

On October 10, 2008, a jury found Enriquez guilty of all eleven counts charged in the indictment.

The jury assessed punishment at 50 years for each of counts one through nine and 20 years for each

of counts ten and eleven, and the trial judge entered multiple stacking orders. In three points of error,

Enriquez argues that the trial court erred by (1) excluding from opening statements evidence of a

prior accusation of physical assault made against him by his daughter, D.E., the child complainant

in this case, (2) excluding that same evidence from cross-examination of D.E., and (3) excluding

evidence during the cross-examination of L.E., Enriquez’s wife and D.E.’s mother, regarding the cost

of her breast implants. We affirm the judgment of the trial court.
                                         BACKGROUND

               Complainant, D.E., lived with her parents and younger brother in Williamson County,

Texas at the time of the events described herein. According to D.E.’s testimony at trial, her father,

appellant Alfredo Enriquez, sexually abused her on a frequent basis when she was in the sixth and

seventh grades. D.E. testified that Enriquez forced her to have vaginal, anal, and oral sex with him

in several areas of the family’s home, including the master bedroom, the living room, the study, a

stairwell, and her bedroom. D.E. testified that when her father would abuse her on the floors of the

master bedroom or living room or on the couch in the living room, he would sometimes place gold-

colored towels underneath her so that the carpets and couch would not be stained. He would not

place down towels when abusing her in the study, where he would penetrate her or force her to

perform oral sex on him in a desk chair facing the family computer. D.E. testified that Enriquez also

penetrated her using sex toys and forced her to penetrate her anus with a spindle used for holding

compact discs. Enriquez sometimes used condoms and sexual lubricant when abusing D.E. In

addition, he would often force her to watch pornography on the family’s television or home

computer or on his cell phone.

               According to testimony at trial, the last instance of abuse occurred on

October 20, 2007, when D.E. was twelve years old. On the evening of October 21, 2007, D.E. told

her mother, L.E., that Enriquez had been abusing her. L.E., after assuring D.E. that the abuse would

never occur again, asked her to calm down so as not to attract the attention of Enriquez. As soon as

Enriquez left for work the next morning, L.E. immediately sought assistance, eventually coming in

contact with the Williamson County Sheriff’s Department. As part of the department’s investigation

of the case, D.E. took them through the family house. D.E. showed police the specific locations of

                                                 2
the condoms, lubricant, CD spindle, and sex toys that her father had used when abusing her, as well

as the location of adult pornographic DVDs and magazines. D.E. also pointed out areas in the house

where she had been abused, and police took carpet samples of some of those areas, including the

master bedroom and the study. In addition, police recovered gold-colored towels matching D.E.’s

description of the towels her father would place under her. The carpet samples and gold towels taken

by police showed evidence of Enriquez’s semen, while the spindle had D.E.’s DNA on it.

               As part of the investigation, police also set up controlled calls from D.E. and her

mother to Enriquez.1 During the first call from D.E. to Enriquez, D.E. said, “I was listening to this

radio station last night about like kids who have problems and are getting abused, and I just don’t

feel right anymore. I think I’m gonna tell mom.” Enriquez responded, “Wait ‘til I get there.” Later

in the conversation, Enriquez said, “OK, please hold on we’ll talk, and it’s not gonna be that bad

anymore anyway.” During the second conversation between D.E. and Enriquez, which appears to

have occurred shortly after the first, D.E. explicitly referenced Enriquez forcing her to perform oral

sex on him: “On my radio I heard that when you stick your dick in my mouth that it’s oral sex and

that’s the same thing you can go to jail even more and it’s just, I can’t lie, dad . . . I have to tell

mom.” Enriquez responded, “OK, let me talk to your mom. Alright?” Later in the conversation,

Enriquez asked D.E. to “be strong and calm down,” saying, “‘Cause this is something that if . . . the

way I understand it—it’s something that I’ll go to jail . . . for a long time.”




       1
         The participants in the calls spoke mainly in Spanish. The quotes from the calls are taken
from the English translation made by a licensed court translator.

                                                   3
               Before trial, the trial court granted the State’s motion in limine regarding a previous

allegation of physical abuse made by D.E. against Enriquez.2 At trial, defense counsel asked the

trial court’s permission to discuss the prior allegation during opening statement. The trial court

denied this request. During cross-examination of D.E., defense counsel approached and again asked

to discuss the prior allegation. The trial court sustained the State’s objection to admission of the

prior allegation under Texas Rule of Evidence 608(b), which bars the use of prior unconvicted acts

to impeach a witness’s credibility.

               Later in the trial, during the cross-examination of L.E., defense counsel asked her,

“How much did your breast implants cost?” The State objected to the relevance of the question.

Defense counsel argued that the question would elicit relevant information about L.E.’s “spending

patterns,” as the State had questioned her about the family’s poor financial situation during direct

examination. The trial court sustained the State’s objection.

               At the conclusion of the trial, the jury found Enriquez guilty of all eleven counts

brought against him, and this appeal followed.


                                          DISCUSSION

Opening Statement

               In his first point of error, Enriquez argues that the trial court erred in excluding

D.E.’s prior allegation of physical abuse during the defense’s opening statement. Under the code




       2
          The record contains few details of this prior allegation. The record shows only that the
allegation was one of physical abuse, and that, according to defense counsel, Enriquez was “cleared”
and the charges “ruled out.”

                                                 4
of criminal procedure, defense counsel may address the “nature of the defenses relied upon and the

facts expected to be proved in their support” during opening statement. Tex. Code Crim. Proc. Ann.

art. 36.01(a) (West 2007). Texas courts have long held that “there rests in the court the judicial

discretion to control the [opening] statement and limit it to its proper scope.” Dugan v. State,

199 S.W. 616, 617 (Tex. Crim. App. 1917); see also Norton v. State, 564 S.W.2d 714, 718 (Tex.

Crim. App. [Panel Op.] 1978) (“The character and extent of opening statement are subject to the trial

court’s discretion.”). A trial court abuses its discretion if its ruling falls outside the “zone of

reasonable disagreement.” Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990); see

also Donnell v. State, 191 S.W.3d 864, 867 (Tex. App.—Waco 2006, no pet.) (applying abuse of

discretion standard to rulings on opening statement).

               In this case, prior to opening statement, the trial court heard arguments on the State’s

motion in limine concerning the prior accusation, and granted the State’s motion over the argument

of defense counsel. While a ruling on a motion in limine is not a ruling on admissibility, see

Draughon v. State, 831 S.W.2d 331, 333 n.1 (Tex. Crim. App. 1992) (explaining that motion in

limine does not entail adverse ruling on admissibility of evidence), the discussion of the motion

indicated that the admissibility of the evidence was in question. Consequently, defense counsel had

no right to raise the issue during opening, as he could not reasonably have “expected” to prove that

fact during trial.3 See Carrasquillo v. State, 742 S.W.2d 104, 113 (Tex. App.—Fort Worth 1987,




       3
         Enriquez also argues in this point of error that the trial court erred in not admitting the
evidence when the issue came up during cross-examination of D.E. We will address the issue of
admissibility of the evidence in point of error two, which concerns the trial court’s exclusion of the
evidence during cross-examination.

                                                  5
no pet.) (finding no error when trial judge instructed defense counsel prior to opening statement not

to “mention to the jury anything that at this point, you think might not be admissible”) (emphasis

added); see also Moore v. State, 868 S.W.2d 787, 793 (Tex. Crim. App. 1993) (“While the accused

also has the right to make an opening statement at the point and on matters prescribed by the statute,

it is not error for the trial court to preclude him from stating matter inadmissible in evidence and

from making argumentative and prejudicial remarks in his favor.”). Given the court’s broad

authority over opening statements and the questionable admissibility of the evidence, we cannot say

that the trial court abused its discretion in disallowing mention of the prior allegation during opening

statement. Accordingly, we overrule Enriquez’s first point of error.


Cross-Examination of D.E.

                In his second point of error, Enriquez argues that the trial judge erred in excluding

evidence of the prior accusation of physical abuse during the cross-examination of D.E. Enriquez

maintains that the exclusion of the evidence violated his constitutional right to confrontation and

effective assistance of counsel under the Sixth Amendment and his constitutional right to present

a defense under the Due Process Clause of the Fourteenth Amendment. We employ a bifurcated

review when dealing with constitutional rulings: “Although we defer to a trial court’s determination

of historical facts and credibility, we review a constitutional legal ruling . . . de novo.” Wall v. State,

184 S.W.3d 730, 742 (Tex. Crim. App. 2006).

                First, Enriquez argues that the trial court’s exclusion of the prior allegation violated

his Confrontation Clause rights. The Sixth Amendment guarantees the right of the accused to be

confronted with the witnesses against him. See U.S. Const. Amend. VI; Davis v. Alaska, 415 U.S.

308, 315 (1974). According to the court of criminal appeals, a “primary interest secured by the

                                                    6
Confrontation Clause is the right of cross-examination.” Lopez v. State, 18 S.W.3d 220, 222

(Tex. Crim. App. 2000). When evidentiary rules conflict with the defendant’s right of cross-

examination, “the Confrontation Clause will prevail.” Id.

                While some states have created a special exception for prior false accusations of

abuse in cases involving sexual offenses, Texas has not done so. See id. at 223-24. Instead, the

court of criminal appeals counsels courts to approach such issues on a case-by-case basis using a

two-pronged test: the defendant must present proof that the accusations were false, and the prior and

current accusations must be of a similar nature. Id. at 226.

                Enriquez fails to meet the requirements of the first prong, that of presenting proof that

the prior accusation was false. While defense counsel argued to the trial court that the allegations

of physical abuse “resulted in an investigation in which Mr. Enriquez was subsequently cleared,” the

record does not provide any specific information about the ultimate resolution of the investigation.

The fact that charges were dropped or the investigation suspended does not amount to a showing that

the allegations were false for the purposes of the Lopez test. See id. at 226 (holding that fact that

case involving prior accusation was “closed” was not probative of falsehood of allegation, as “[t]his

could simply indicate a lack of evidence to prove the allegation at that time, or an administrative

decision that, despite the allegation’s validity, the parties would be best served by closing the case”);

see also Garcia v. State, 228 S.W.3d 703, 706 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d)

(holding that “the fact that no charges were filed after a police investigation” did not prove falsity

of allegations under Lopez).

                Even if Enriquez had presented proof of falsity, he nevertheless fails to satisfy the

second prong, that of demonstrating the similarity of the previous allegation to the current allegation.

                                                   7
See Lopez, 18 S.W.3d at 226. Enriquez presents almost no evidence linking the two allegations. The

record shows only that the prior and current allegations were made by D.E. against Enriquez, and

that the first allegation concerned physical abuse, while the second allegation concerned sexual

abuse. Unrelated allegations of physical and sexual abuse do not constitute a pattern of behavior

sufficient to satisfy the second prong of the Lopez test. Id. (holding that complainant’s prior

accusation of physical abuse by mother and current allegation of sexual abuse by defendant did not

have requisite similarity). Accordingly, as Enriquez failed to provide adequate proof that the prior

allegations were false or of a similar nature, his Confrontation Clause challenge fails.

               Second, Enriquez argues that the trial court’s exclusion of the prior allegation denied

him his Sixth Amendment right to effective assistance of counsel. See U.S. Const. Amend. VI. To

prevail on an ineffective assistance of counsel claim, the defendant must first show that

counsel’s performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687 (1984).

Enriquez, however, provides no proof that counsel’s performance was deficient, instead basing his

argument on the actions of the trial court in excluding evidence of the prior allegation. As such

considerations have no bearing on the issue of ineffective assistance of counsel, and as Enriquez

offers no proof of deficient performance by defense counsel, Enriquez’s claim of ineffective

assistance of counsel fails under Strickland.

               Third, Enriquez argues that the trial court’s exclusion of the prior allegation denied

him due process by preventing him from presenting a defense.4 While the constitution guarantees

criminal defendants the right to present a defense, “state and federal rulemakers have broad latitude



       4
         The right to present a defense may be rooted in the Due Process Clause of the Fourteenth
Amendment or in the Compulsory Process or Confrontation clauses of the Sixth Amendment. See
United States v. Scheffer, 523 U.S. 303, 329 n.16 (1998) (Stevens, J., dissenting).

                                                 8
under the Constitution to establish rules excluding evidence from criminal trials.” United States

v. Scheffer, 523 U.S. 303, 308 (1998). The Supreme Court has held that such rules “do not abridge

an accused’s right to present a defense so long as they are not ‘arbitrary’ or ‘disproportionate to the

purposes they are designed to serve,’” and that such rules rise to a constitutionally impermissible

level only when they infringe “upon a weighty interest of the accused.” Id. (quoting Rock

v. Arkansas, 483 U.S. 44, 56 (1987)).

               In interpreting the right to present a defense, the court of criminal appeals has

identified “two distinct scenarios” under which the right might be abridged. See Wiley v. State,

74 S.W.3d 399, 405 (Tex. Crim. App. 2002). The first scenario concerns “a state evidentiary rule

which categorically and arbitrarily prohibits the defendant from offering otherwise relevant, reliable

evidence which is vital to his defense.” Id. The second scenario arises when “a trial court’s clearly

erroneous ruling exclud[es] otherwise relevant, reliable evidence which ‘forms such a vital portion

of the case that exclusion effectively precludes the defendant from presenting a defense.’” Id.

(quoting Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002)). Under this standard,

“erroneous evidentiary rulings rarely rise to the level of denying the fundamental constitutional rights

to present a meaningful defense.” Potier, 68 S.W.3d at 663.

               Enriquez argues that the court’s erroneous exclusion of evidence of the prior

accusation prevented him from presenting his defense, as the main theory of his defense involved

dishonesty on the part of the complainant, D.E.5 Even assuming without deciding that the trial court

erred, the exclusion of evidence in this case does not rise to the level of constitutional error.

Enriquez was not precluded from presenting the defense as a general matter. For example, he was

       5
         Enriquez does not challenge Texas Rule of Evidence 608(b), which disallows the use of
prior unconvicted acts to impeach the credibility of a witness, as arbitrary.

                                                   9
able to present witness testimony challenging D.E.’s credibility.6 Further, the prior allegation is of

dubious probative value. In the absence of evidence of the falsity of D.E.’s previous allegation, the

mere fact that it did not lead to adverse consequences for Enriquez does not indicate that D.E. was

necessarily dishonest in making the allegation.

                   Enriquez also argues that the exclusion of evidence prevented him from explaining

the statements he made to his daughter during the controlled calls. The inability to bring up the prior

allegation at trial, Enriquez maintains, prevented him from adequately responding to the State’s

questions regarding his failure to challenge D.E.’s direct statements detailing Enriquez’s abusive

acts, including, “You put your dick in my mouth.” He asserts on appeal that his “wariness” of the

topic of conversation, brought about by D.E.’s prior allegation, explains his responses to D.E.’s

statements. There is no reason to expect, however, that the experience of a prior allegation would

make a person less likely to defend himself against a new allegation. It is difficult, then, to see how

evidence of D.E.’s prior allegation would be relevant to explain Enriquez’s statements during the

controlled call.

                   Further, Enriquez was able to offer other explanations to the jury. When questioned

during cross-examination about what he meant when he said that “it wouldn’t happen anymore,”

Enriquez explained that he thought D.E. was talking about being teased by her classmates at school.

Enriquez was also able to make a passing reference to the prior allegation. When asked if he knew



        6
          In particular, Enriquez was able to offer the testimony of D.E.’s grandmother, who testified
that both D.E. and L.E. have untruthful characters. Defense counsel also had the opportunity to
directly cross-examine D.E. about any potential inconsistencies in her allegation and testimony. In
addition, defense counsel was able to cross-examine the numerous State witnesses who participated
in the investigation and spoke with D.E. or observed her behavior, including detectives, crime-scene
investigators, and medical professionals.

                                                   10
whether D.E.’s allegations carried serious consequences, he responded, “Yes, because she’s made

those claims before on physical abuse.” The jury received no limiting instruction regarding that

statement, and we can only assume that they considered that fact, along with all of the other facts in

this case, when making the decision to convict Enriquez. The record shows that Enriquez

was able to present his defense, and consequently Enriquez’s argument fails to meet the

constitutional standard.

               As we conclude that the trial court’s ruling did not deny Enriquez his constitutional

rights to confront witnesses against him, receive the effective assistance of counsel, or present a

defense, Enriquez’s second point of error is overruled.


Cross-Examination of L.E.

               In his third point of error, Enriquez claims that the trial court erred in excluding

evidence of the “spending patterns” of L.E., his wife and the mother of the complainant. Under the

Texas Rules of Evidence, evidence “must satisfy two requirements to be considered relevant: first,

materiality, and second, probativeness.” Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App.

2001); see also Tex. R. Evid. 401-02. To be material, evidence must address “any fact that is of

consequence to the determination of the action. If the evidence is offered to help prove a proposition

which is not a matter in issue, the evidence is immaterial.” Miller, 36 S.W.2d at 507 (internal

citations and quotation marks omitted). Trial court rulings on relevance are reviewed for abuse of

discretion: “Questions of relevance should be left largely to the trial court, relying on its own

observations and experience, and will not be reversed absent an abuse of discretion.” Brown v. State,




                                                 11
96 S.W.3d 508, 512 (Tex. App.—Austin 2002, no pet.) (quoting Moreno v. State, 858 S.W.2d 453,

463 (Tex. Crim. App. 1993)) (internal quotation marks omitted).

                At trial, defense counsel, after confirming that L.E. had told a detective that she

started working at a strip club due to debts that her husband had incurred, asked, “How much did

your breast implants cost?” The State objected on relevance grounds, and the trial judge sustained

the objection, reminding defense counsel, “This is a child molesting case. Okay. This is a child

molesting case.”

                Enriquez argues that this testimony rebuts the State’s portrayal of him as a “reckless

spender.” Even in light of this assertion, the amount of L.E.’s expenditures for breast implants is

not material, as such information does not address any “matter in issue” in this, a sexual assault case.

The trial court acted well within its discretion in ruling that such evidence was not relevant.

Consequently, Enriquez’s third point of error is overruled.



                                          CONCLUSION
                Because we find no reversible error, we affirm the judgment of the trial court.



                                                __________________________________________

                                                Diane M. Henson, Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Affirmed

Filed: October 23, 2009

Do Not Publish


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