                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-14-00419-CR
                               NO. 09-14-00420-CR
                               NO. 09-14-00421-CR
                               NO. 09-14-00422-CR
                              _________________

                 GUADENCIO AGUILAR MEJIA, Appellant

                                         V.

                          STATE OF TEXAS, Appellee
________________________________________________________________________

                     On Appeal from the 9th District Court
                         Montgomery County, Texas
               Trial Cause No. 14-04-04489 CR (Counts 1, 2, 3, 4)
________________________________________________________________________

                          MEMORANDUM OPINION

      Appellant Guadencio Aguilar Mejia appeals his convictions for the offenses

of sexual assault of a child and indecency with a child by contact. In four points of

error, Mejia challenges his convictions. We affirm.




                                         1
                                    Background

      C.W. 1 was born in Honduras. When she was fifteen years old, she moved to

the United States and began living with different relatives, including Mejia, her

uncle. C.W. testified at length regarding the sexual abuse she endured by Mejia

while living with him and her aunt. The jury found Mejia guilty of three counts of

sexual abuse of a child and one count of indecency with a child by sexual contact.

The jury assessed Mejia’s punishment for the sexual assault convictions at

imprisonment for sixteen years for Count 1, seven years for Count 2, and sixteen

years for Count 3. The jury assessed Mejia’s punishment for Count 4, the

indecency with a child by sexual contact conviction, at three years imprisonment.

The trial court ordered the sentences to run consecutively. Mejia appealed the trial

court’s judgment.

                           Limited Cross-Examination

      In his first point of error, Mejia contends the trial court erred when it limited

his cross-examination of C.W. regarding her immigration status. Specifically,

Mejia contends the trial court’s exclusion of this evidence deprived him of his

constitutional right to present a complete defense under the Fourteenth

Amendment. He also contends the trial court’s ruling violated his right to confront
      1
       To protect the victim’s identity, we use an alias. See McClendon v. State,
643 S.W.2d 936, 936 n. 1 (Tex. Crim. App. [Panel Op.] 1982).
                                          2
witnesses under the Confrontation Clause of the Sixth Amendment to the United

States Constitution and article I, section 10 of the Texas Constitution. Mejia argues

this testimony was necessary to establish C.W.’s motive for fabricating the

allegations against him and to impeach her credibility. The State responds that

Mejia failed to preserve this error for appellate review.

      Defense counsel sought to cross-examine C.W. about her immigration

status. During a bench conference, defense counsel informed the trial court that he

would like to question C.W. about her immigration status and the pendency of her

immigration petition. Defense counsel argued the evidence was relevant to show

that C.W. had a “possible motive to lie.” The State responded that it believed C.W.

was in the United States legally and that the questions regarding her citizenship

were not relevant. The trial judge ruled that he would consider defense counsel’s

evidence in camera before allowing the testimony. Defense counsel informed the

court that he had no documentary evidence to support his concerns regarding

C.W.’s citizenship and that he was only relying on things the family had told him.

He admitted that he had been unable to confirm the family’s allegations. The trial

court found the testimony was highly prejudicial and ruled it inadmissible “[a]t this

time[,]” but the court explained that he might change his ruling if “family members

take the stand” and counsel is able to present credible evidence supporting the

                                          3
accusation. The record reflects that defense counsel did not call any family

members to testify about C.W.’s immigration status. And, defense counsel did not

attempt to cross-examine C.W. on this issue again.

      As noted above, Mejia complains that the trial court violated his

constitutional right to present a complete defense when it refused to permit him to

cross-examine C.W. on her immigration status. At trial, defense counsel argued

that the evidence of C.W.’s immigration status was relevant to his theory that she

had a “possible motive to lie[,]” but he did not cite to any rules of evidence, cases,

or constitutional provisions to support his contention that the evidence was

admissible. Mejia did not assert that the trial court’s limitation of his cross-

examination of C.W. amounted to a violation of his constitutional right to present a

defense. Because Mejia failed to object to the exclusion of the testimony based on

his constitutional right to present a defense, we conclude Mejia has failed to

preserve this complaint for appellate review. See Broxton v. State, 909 S.W.2d 912,

918 (Tex. Crim. App. 1995) (concluding appellant waived his federal

constitutional due process rights when he failed to lodge an objection at trial);

Wright v. State, 374 S.W.3d 564, 575-76 (Tex. App.—Houston [14th Dist.] 2012,

pet. ref’d) (concluding appellant did not preserve issue for review when appellant



                                          4
failed to specifically assert in the trial court that the evidentiary rulings violated her

constitutional right to present a defense).

      Mejia also complains that the trial court violated his constitutional right to

confront witnesses when it refused to permit him to cross-examine C.W. on her

immigration status. A defendant must preserve error in the trial court to argue on

appeal that his right to confront witnesses was violated. Anderson v. State, 301

S.W.3d 276, 280 (Tex. Crim. App. 2009); Deener v. State, 214 S.W.3d 522, 527

(Tex. App.—Dallas 2006, pet. ref’d). To preserve error on Confrontation Clause

grounds, a defendant must make a sufficiently specific objection on that basis.

Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005). Defense counsel

did not argue that the Confrontation Clause demanded that he be given the

opportunity to cross-examine C.W. regarding her immigration status. Defense

counsel stated that the evidence was relevant to C.W.’s “possible motive to lie.”

Rule 611(b) of the Texas Rules of Evidence provides that, “[a] witness may be

cross-examined on any relevant matter, including credibility.” Tex. R. Evid.

611(b). Certainly, evidence of a “motive to lie” could potentially affect a witness’s

credibility; as such, Rule 611(b) could possibly serve as the basis for Mejia’s trial

objection. See id. It is also possible that defense counsel could have been relying

upon the Confrontation Clause in questioning the truthfulness of C.W.’s testimony.

                                              5
See Reyna, 168 S.W.3d at 179. However, at no point in time did defense counsel

clarify or otherwise articulate that he was objecting to the trial court’s ruling

regarding the admissibility of the testimony based upon the Confrontation Clause.

“When a defendant’s objection encompasses complaints under both the Texas

Rules of Evidence and the Confrontation Clause, the objection is not sufficiently

specific to preserve error.” Id. Thus, Mejia failed to clearly articulate his position

regarding the Confrontation Clause to the trial court and deprived the trial court of

the opportunity to rule upon its admissibility based upon Mejia’s rationale. See id.

Because Mejia failed to lodge a specific complaint based on the Confrontation

Clause during the cross-examination of C.W., we conclude he has failed to

preserve his complaint based on the Confrontation Clause for appellate review. See

Anderson, 301 S.W.3d at 280.

      Even if Mejia had preserved these issues for review, we do not find the trial

court abused its discretion in excluding this testimony. We review a trial court’s

decision to admit or exclude evidence under an abuse of discretion standard.

Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). An abuse of

discretion occurs when the trial court acts without reference to any guiding rules or

principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).



                                          6
      From our reading of the record, it appears that the trial court’s ruling was

based either on the application of the Rules of Evidence or the Confrontation

Clause. See Tex. R. Evid. 401 (defining relevant evidence to include evidence

having any tendency to make a fact of consequence in determining the action more

or less probable than it would be without the evidence), 402 (providing that

irrelevant evidence is not admissible), 403 (allowing for relevant evidence to be

excluded if its probative value is substantially outweighed by a danger of unfair

prejudice, confusion of the issues, misleading the jury, undue delay, or needlessly

presenting cumulative evidence); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim.

App. 2000) (explaining that the trial court maintains broad discretion to impose

reasonable limits on cross-examination and that “[i]n weighing whether evidence

must be admitted under the Confrontation Clause, the trial court should balance the

probative value of the evidence sought to be introduced against the risk its

admission may entail.”). Here, the trial court found the testimony was not relevant.

The court further found that without sufficient substantiation, any testimony

concerning the nature of C.W.’s immigration status would be highly prejudicial,

and the prejudicial nature of the testimony would outweigh any potential

relevance. See Tex. R. Evid. 403; Lopez, 18 S.W.3d at 222. Mejia’s counsel

admitted that he had been unable to verify the claims Mejia’s family told him

                                         7
about C.W.’s immigration status. The trial court informed Mejia’s counsel that he

would reconsider his ruling if those family members testified and provided credible

evidence suggesting an issue with C.W.’s immigration status. However, Mejia did

not present any evidence to substantiate the claims regarding C.W.’s immigration

status, and the questions Mejia sought to ask would constitute nothing more than a

mere fishing expedition with a substantial prejudicial effect. As such, we find no

abuse of discretion in the trial court’s ruling.

      We overrule Mejia’s first point of error.

                           Motion for New Trial Hearing

      In his second point of error, Mejia contends the trial court erred in denying

his pro se motion for new trial without first conducting a hearing. According to

Mejia, he filed a timely pro se motion for new trial alleging ineffective assistance

of counsel because his trial counsel failed to inform him of a plea offer and failed

to present expert witness testimony on his behalf. The State responds that Mejia

failed to request a hearing and thus, failed to preserve this issue for review.

      A defendant does not have an absolute right to a hearing on a motion for

new trial. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). If a

defendant wants a hearing on a motion for new trial, the defendant must request

one. Id. The “reviewing court does not reach the question of whether a trial court

                                            8
abused its discretion in failing to hold a hearing if no request for a hearing was

presented” to the trial court. Id.

      Here, Mejia filed a pro se motion for new trial. Although Mejia now claims

he was denied a hearing on his motion, there is nothing in the record to indicate

that Mejia presented his motion with a request for a hearing. Therefore, any alleged

error in the trial court’s failure to hold a hearing was not preserved for our review.

Id. at 231.

      We overrule Mejia’s second point of error.

                          Violation of the Discovery Order

      In his third point of error, Mejia contends the trial court erred in allowing the

State’s DNA expert witness to testify over defense counsel’s objection that the

State violated the trial court’s discovery order in failing to give notice of the

content of its DNA expert’s expected testimony. Mejia contends that he could not

have anticipated the subject and content of the expert witness’s testimony, and the

State acted in bad faith in failing to disclose the information concerning the

witness.

      The trial court’s standing discovery order included an order that the State

produce “[a] list of the names, addresses and professions of all expert witnesses the

prosecution intends to call at trial, along with each expert’s qualifications, the

                                          9
subject and a description of his or her contemplated testimony, and his or her

report.” In the State’s original response to discovery, it identified John Jackson as a

“Forensic Scientist[,] DPS-Crime Lab[,] Designated Analyst, Criminalist and/or

Toxicologist and/or Designated Representative and/or Custodian of Records[.]”

Defense counsel also received a copy of Jackson’s DNA report, which was

admitted into evidence, and the file from DPS. In describing the results of two of

the samples tested, Jackson’s DNA report states,

      The DNA profile is consistent with a mixture. Guadencio Mejia
      cannot be excluded as the contributor of the major component in this
      profile. The probability of selecting an unrelated person at random
      who could be the source of the major component of this profile is
      approximately 1 in 2.036 septillion for Caucasians, 1 in 4.456
      septillion for Blacks, and 1 in 6.840 sextillion for Hispanics. To a
      reasonable degree of scientific certainty, Guadencio Mejia is the
      source of the major component of this profile (excluding identical
      twins). Due to the low level of data present above our analysis
      threshold, no comparisons will be made to the minor component.

At trial, defense counsel objected to Jackson’s testimony on the basis that the State

did not notify defense counsel of Jackson’s intent to testify about the degradation

of DNA evidence and the “impact it could have on the existence of other DNA that

might have been there.” Defense counsel argued that the DNA report did not put

him on notice that Jackson would testify as to the “details of how to interpret any

unknown or how to interpret that mixture and what could have happened to the

components of that mixture.” Defense counsel complained that because the State
                                     10
did not give him sufficient notice of the content of Jackson’s testimony, he was

unable to prepare for trial. The State responded that its disclosure in conjunction

with Jackson’s DNA report and the DPS’s file was sufficient to provide defense

counsel with adequate notice of the scope of Jackson’s testimony. The trial court

overruled Mejia’s objection.

      On appeal, the State initially argues that the trial court’s standing discovery

order is void as it exceeds the trial court’s authority. The State relies on an

unpublished opinion of the Court of Criminal Appeals in support of its contention.

See generally In re Stormer, No. WR-66865-01, 2007 WL 1783853, at *2-3 (Tex.

Crim. App. June 20, 2007) (orig. proceeding) (per curiam) (not designated for

publication). In Stormer, the Court of Criminal Appeals reviewed an identical

provision to that at issue in this case. See id. at *2. The Court ultimately concluded

that the scope of the provision of the trial court’s order exceeded the authority

granted to the trial court under Texas Code of Criminal Procedure art. 39.14(b)

because that statute requires only the disclosure of the names and addresses of

persons that the party may call to testify and the facts and data that underlie an

expert witness’s opinion. Id.2

      2
        We note the offenses in this case are alleged to have occurred in 2012. The
Legislature amended article 39.14 of the Texas Code of Criminal Procedure in
2013 and 2015. Consequently, the amended version of this statute is not applicable.
                                         11
      In direct reply to Mejia’s issue on appeal, the State argues that there is no

evidence that the State actually withheld any evidence in this case and that Mejia

mischaracterized the prosecutor’s actions by claiming the prosecutor somehow

acted in bad faith in responding to discovery. The State contends the trial court did

not abuse its discretion in allowing the evidence admitted.

      Generally, a court should exclude evidence willfully withheld from

disclosure in violation of a discovery order. Francis v. State, 428 S.W.3d 850, 854-

55 (Tex. Crim. App. 2014) (quoting Hollowell v. State, 571 S.W.2d 179, 180 (Tex.

Crim. App. 1978)). The Court of Criminal Appeals has explained that the rule

requiring the exclusion of evidence in this context is essentially a “court-fashioned

sanction for prosecutorial misconduct[.]” Id. at 855. As such, the trial court’s

decision to exclude evidence is based on “‘whether the prosecutor acted with the

specific intent to willfully disobey the discovery order[.]’” Id. (quoting Oprean v.

State, 201 S.W.3d 724, 727 (Tex. Crim. App. 2006)). Even a prosecutor’s extreme

negligence or recklessness in failing to comply with a discovery order will not,

alone, justify the sanction. Id. We review a trial court’s ruling to exclude evidence

See Act of May 14, 2013, 83rd Leg., R.S., ch. 49, § 3, 2013 Tex. Sess. Law Serv.
106, 108 (West) (codified at Tex. Code Crim. Proc. Ann. art. 39.14) (“The change
in law made by this Act applies to the prosecution of an offense committed on or
after the effective date [January 1, 2014] of this Act. The prosecution of an offense
committed before the effective date of this Act is covered by the law in effect when
the offense was committed . . . .”).
                                          12
for willful prosecutorial defiance of a discovery order for an abuse of discretion,

and will defer to the trial court’s ruling if it falls within the zone of reasonable

disagreement. Id. If there are no findings of fact from the trial court regarding its

determinations of credibility and demeanor, we must assume the trial court

resolved all fact issues in a way that is consistent with its ultimate ruling if the

presumed findings are supported by the record. Id.

      The record does not include findings of fact or conclusions of law with

regard to this issue. Thus, we presume that the trial court resolved any issues of

credibility regarding the State’s compliance with the court’s discovery order in the

State’s favor. We note the facts in the record pertaining to the State’s conduct do

not demonstrate a willful violation of the court’s order. During the bench

conference on this issue, the prosecutor explained their office believed the State

had complied with the discovery requirements because it had produced to defense

counsel the entire DPS file, all of the raw data, and Jackson’s DNA report. As

noted earlier, the State identified Jackson as a witness in its original responses to

discovery, including that Jackson is a forensic scientist at the DPS Crime Lab. In

detailing the contents of the State’s file, the State also disclosed that it was in

possession of Jackson’s DNA Lab Report. Defense counsel notified the State of his

experts, including a forensic scientist with expertise in “DNA and the forensic

                                         13
laboratory analysis thereof, including the interpretation of said analyses[.]”

Defense counsel requested the court to order the DPS to turn over all raw data

relating to its analysis of the DNA evidence for his expert to review and allow him

to adequately prepare for trial. The trial court granted this request and defense

counsel admitted to the court that he had received the requested materials.

      Mejia complains that the State did not designate Jackson as a DNA expert

witness or even as an expert witness but that the State selectively designated other

witnesses as either “expert” witnesses or “fact and expert” witnesses. Mejia

suggests this is evidence that the State willfully or in bad faith withheld this

information. The record, however, gives no indication that this omission was

anything more than negligence on the part of the State.

      Mejia further contends that “the cumulative and systematic withholding of

evidence regarding the prospective experts[’] testimonies shows that the State

acted in bad faith.” However, we first note that there is no indication in the record

that the State withheld “evidence.” A summary of expected testimony is not

“evidence” but rather more akin to argument. See Wheatfall v. State, 882 S.W.2d

829, 839 (Tex. Crim. App. 1994) (“The adversarial system permits such summaries

by one side during closing arguments, but they are arguments and not admitted as

evidence to the jury. Admission of these documents under this theory was clearly

                                         14
error.”); see also Markey v. State, 996 S.W.2d 226, 231 (Tex. App.—Houston

[14th Dist.] 1999, no pet.) (“[A] mere summary of other evidence already before

the jury constitutes no proof of any fact in issue.”). Additionally, that the State did

not provide the defense with a summary of the anticipated content of its witnesses’

testimonies is not evidence of bad faith or willful disobedience. In making the

determination of whether a prosecutor willfully disobeyed a court’s discovery

order, we consider “whether the record indicates that (1) the prosecutor intended to

harm the defense, (2) the prosecutor’s actions were a strategic and purposeful

effort to thwart the defense’s preparation of its case, or (3) the prosecutor

consciously decided to violate the plain directive of the discovery order.” Walker v.

State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). The

fact that the State provided defense counsel with Jackson’s report and the full DPS

file belies the notion that the State intended to harm Mejia’s defense or somehow

thwart his attempt to prepare for trial by denying his counsel a summary of

anticipated testimony stemming from these very items. We have not been cited to

nor have we found any evidence in the record that the prosecutor acted with

specific intent to willfully disobey the discovery order. We also note that defense

counsel’s arguments at trial for suppressing the testimony did not include an



                                          15
allegation that the prosecutor intentionally or willfully withheld the summaries

from defense counsel in bad faith.

      Based on the record before us, we conclude there is no evidence that the

prosecutor purposely violated the trial court’s discovery order to harm Mejia in his

trial preparation. See State v. LaRue, 152 S.W.3d 95, 99-100 (Tex. Crim. App.

2004). We conclude the trial court did not abuse its discretion in refusing to

sanction the State by excluding the complained-of testimony. 3 See Oprean, 201

S.W.3d at 726. We overrule Mejia’s third point of error.

      In Mejia’s fourth point of error, he contends that the cumulative impact of

the errors he asserted in his first three points was so great that reversal is required.

Because we have overruled Mejia’s first three points of error, his fourth point of

error is without merit and it is overruled. Finding no reversible error, we affirm the

judgment of the trial court.

      AFFIRMED.

                                               ______________________________
                                                      CHARLES KREGER
                                                           Justice
      3
        We note that Mejia did not request a continuance at trial based on surprise,
so any appellate complaint of surprise is waived. See State v. LaRue, 152 S.W.3d
95, 100 (Tex. Crim. App. 2004); Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim.
App. 1994) (holding that any error by the trial court in allowing a witness to testify
over a claim of surprise is made harmless if the defendant failed to object or move
for a continuance).
                                        16
Submitted on October 19, 2015
Opinion Delivered June 29, 2016

Before McKeithen, C.J., Kreger and Johnson, JJ.




                                      17
