Affirmed and Opinion filed December 22, 2016.




                                     In The

                      Fourteenth Court of Appeals

                              NO. 14-15-00897-CR

                   JESUS EDUARDO ESPARZA, Appellant

                                        V.
                       THE STATE OF TEXAS, Appellee

                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1415710

                                OPINION


      A jury convicted appellant, Jesus Eduardo Esparza, of indecency with a
child, a second-degree felony. See Tex. Penal Code § 21.11 (a) (West 2015).
Appellant brings two issues on appeal: (1) the trial court erred when it excluded
witness testimony regarding complainant’s potential bias against appellant; and (2)
the trial court erred when it gave the jury a limiting instruction on extraneous
conduct. We affirm.
                                           I.     BACKGROUND

       Complainant is a minor. The families of complainant and appellant would
often get together. Appellant has a son, Eric,1 who is around the same age as
complainant. On November 23, 2013, complainant’s mother dropped him and his
younger brother off at appellant’s house. Complainant and Eric watched movies
while lying on the mattress. Complainant fell asleep. Complainant testified that he
awoke to appellant, instead of Eric, beside him on the mattress. At this point,
appellant committed the charged offense.

       A jury convicted appellant and the trial court sentenced him, in accordance
with the parties’ agreement, to seven years in the Institutional Division of the
Texas Department of Criminal Justice. Appellant timely filed this appeal.

                                            II.       ANALYSIS

   A. Exclusion of Evidence
       In his first issue, appellant contends that the trial court abused its discretion
when it excluded testimony regarding complainant’s potential bias against
appellant.2 Appellant contends that this bias may have arisen from an exchange
between Eric and complainant on the night appellant committed the charged
offense.

       1
         The pseudonym “Eric” will be used for the appellant’s son in this case because he was a
minor at the time of the offense. See Tex. R. App. P. 9.10.
       2
          To the extent appellant contends that the trial court’s refusal to allow cross-examination
on this topic violates the Confrontation Clause, we hold that appellant failed to preserve this
complaint for appellate review. The State objected to defense counsel’s line of questioning on
relevance grounds, and defense counsel explained that the questioning goes to complainant’s
motive to lie or bias against appellant. Defense counsel did not argue that this questioning was
necessary to satisfy the mandates of the Confrontation Clause. See id. at 179 (“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.”) (citing Cantu
v. State, 939 S.W.2d 627, 634 (Tex. Crim. App. 1997)).

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      We review a trial court’s decision to exclude evidence for an abuse of
discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial
court abuses its discretion only if its decision is “so clearly wrong as to lie outside
the zone within which reasonable people might disagree.” Taylor v. State, 268
S.W.3d 571, 579 (Tex. Crim. App. 2008). We review the evidence in the light most
favorable to the trial court’s ruling. Valtierra v. State, 310 S.W.3d 442, 447 (Tex.
Crim. App. 2010). A trial court’s ruling on the admission of evidence must be
affirmed if it is correct under any theory of law, even if the trial court gives the
wrong reason for its ruling. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim.
App. 1990).

      “A defendant has a fundamental right to present evidence of a defense as
long as the evidence is relevant and is not excluded by an established evidentiary
rule.” Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001). The proponent
of evidence to show bias must establish that it is relevant by demonstrating a
“nexus, or logical connection, exists between the witness’s testimony and the
witness’s potential motive to testify in favor of the other party.” Woods v. State,
152 S.W.3d 105, 111–12 (Tex. Crim. App. 2004); see also Tex. R. Evid. 401, 402.
Great latitude is given to the accused to show any fact that would tend to establish
bias or motive on the part of any witness testifying against him, but “the trial court
has discretion in determining how and when bias may be proved, and what
collateral evidence is material for that purpose.” Recer v. State, 821 S.W.2d 715,
717 (Tex. App.—Houston [14th Dist.] 1991, no pet.).

      Here, Eric testified that he considered complainant a good friend, but stated
“sometimes, he doesn’t sit well with me” because of the “way he acts and the way
we play.” The State objected on grounds that the testimony was irrelevant and



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violated rule 412. See Tex. R. Evid. 402, 412.3 The trial court held an in-camera
hearing, during which Eric testified that, while complainant and Eric would lie
down, complainant would touch Eric in a way that made Eric uncomfortable.
Complainant would sometimes grab Eric’s shoulders and touch Eric’s feet with his
own feet. Complainant did this on the night in question, and Eric testified that this
contact was non-sexual. Eric informed complainant on this night and on other
occasions, that he disliked such physical contact. Eric testified that complainant did
not appear angry when Eric informed complainant of his discomfort. The trial
court sustained the State’s objection, stating, “I don’t think it’s relevant or it’s
admissible.”

       Appellant contends that the testimony was relevant. Appellant reasons that a
“rebuffing” between two young male friends could have motivated complainant to
make false accusations against appellant. However, the record reveals that
complainant did not appear angry, and there was no dispute between the two boys.
Furthermore, the excluded testimony did not connect Eric’s voiced discomfort to
complainant’s alleged bias against appellant. Even if complainant was biased
against Eric, it does not logically follow that complainant fabricated appellant’s
indecent conduct. See Reynolds v. State, 371 S.W.3d 511, 521 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d) (finding no logical connection existed between

       3
           Appellant argues that rule 412 is inapplicable here and we agree. The rule states, in part:
       The following evidence is not admissible in a prosecution for sexual assault,
       aggravated sexual assault, or attempt to commit sexual assault or aggravated
       sexual assault: (1) reputation or opinion evidence of a victim’s past sexual
       behavior; or (2) specific instances of a victim’s past sexual behavior.
Tex. R. Evid. 412. Rule 412, on its face, does not apply to a case of indecency with a child. See
Reyna v. State, 168 S.W.3d 173, 176 (Tex. Crim. App. 2005) (“[T]hat rule applies to cases of
sexual assault, aggravated sexual assault, or an attempt to commit those offenses. It does not on
its face apply to a case of indecency with a child.”).


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victim’s dislike of appellant’s mother and her motive to testify against appellant
and give false testimony; thus, no error in excluding such testimony).

      We conclude that the record provides a basis for the trial court’s conclusion
that appellant failed to establish relevancy or the logical nexus required to
demonstrate bias. The trial court did not abuse its discretion in refusing to allow
defense counsel to pursue this line of questioning.

      We overrule appellant’s first issue.

   B. Jury Charge Error
      Appellant contends in his second issue that the trial court erred when it
charged the jury with a limiting instruction on any admitted, extraneous offenses
that appellant committed. The charged conduct was that appellant touched
complainant’s genitals, but the trial court also admitted evidence that appellant
made complainant touch his genitals and asked complainant to perform oral sex on
him. Appellant does not contend that the trial court erroneously admitted testimony
regarding the extraneous acts.

      The State contends that appellant did not preserve this issue for appeal. We
disagree. During the conference on jury instructions, defense counsel requested the
trial court to omit the article 38.37 extraneous offense instruction at issue here, and
a second, more general extraneous offense instruction that the State requested. See
Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App. 2009) (“Although there are
no technical considerations or forms of words required to preserve an error for
appeal, a party must be specific enough so as to ‘let the trial judge know what he
wants, why he thinks himself entitled to it, and do so clearly enough for the judge
to understand him at a time when the trial court is in a proper position to do
something about it.’ ”) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex.
Crim. App. 1992)). Defense counsel argued that the article 38.37 instruction was
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unduly prejudicial and would improperly influence the jury into thinking separate
cases were filed against appellant. The court disagreed, explained its thoughts on
the issue, and then the parties went on to address the other, more general limiting
instruction. The court then asked for clarification: “[W]ith the exception of what
you previously put on the record [regarding] the 38.37 instruction, are there any
other objections?” Defense counsel replied by requesting “his page” be omitted.
The court stated that it would not include the general extraneous instruction, and
asked if counsel had any objections to the article 38.37 instruction. Defense
counsel responded, “Not more than what was already stated.” We cannot agree
with the State that defense counsel failed to object. In context, the court understood
defense counsel’s arguments regarding the article 38.37 instruction as an objection.
The trial court included the instruction in the jury charge anyway. That was an
implicit ruling. See Tex. R. App. P. 33.1 (requiring, for preservation purposes, a
trial court to rule on a request, objection, or motion, either expressly or implicitly).

      We review a claim of jury charge error using the two-step procedure set out
in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). We first
determine whether there is error in the charge. Id.; Barrios v. State, 283 S.W.3d
348, 350 (Tex. Crim. App. 2009). Then, if error is found, we analyze that error for
harm. Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013).

      The court included the limiting instruction in the jury charge sua sponte, and
over appellant’s objection. The instruction correctly tracked the language of article
38.37 of the Texas Code of Criminal Procedure and provided:

      You are further instructed that if there is any evidence before you in
      this case regarding the defendant’s committing other crimes, wrongs
      or acts against the child who is the victim of the alleged offense in the
      indictment in this case, you cannot consider such evidence for any
      purpose unless you find and believe beyond a reasonable doubt that
      the defendant committed such other crimes wrongs or acts against the
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       child if any and even then you may only consider the same in
       determining its bearing on relevant matters, including (1) the state of
       mind of the defendant and the child and (2) the previous and
       subsequent relationship between the defendant and the child and for
       no other purpose.

Compare Tex. Code Crim. Proc. art. 38.37, § 1(b) (2015).

       Appellant contends the trial court erred because it had no sua sponte duty to
give this limiting instruction for extraneous offenses in the jury charge, citing
Delgado v. State, 235 S.W.3d 244, 246 (Tex. Crim. App. 2007). In Delgado, the
Court of Criminal Appeals held that a trial court does not commit error if it does
not include, and the defendant does not request, a limiting instruction in the jury
charge on the State’s burden of proof for extraneous offenses offered under rule
404(b). Id. However, a trial court must include the instruction when requested by
the defendant. Id. Delgado does not say, and it does not follow, that trial courts are
prohibited from including an extraneous offense instruction raised by the evidence
if the defendant objects. We have found no authority for construing Delgado as
appellant suggests.

       Appellant further claims that it is acceptable trial strategy for defense
counsel to object to an article 38.37 limiting instruction, and therefore, the trial
court should not have included the instruction over his objection.4 To support his
claim, appellant cites inapplicable cases that resolved issues of whether counsel
rendered effective assistance.

       We know of no case where jury charge error was found because it was

       4
         Appellant’s strategy was to avoid misleading the jury into thinking appellant committed
other, unmentioned offenses. Appellant contends that the jury could have believed the charged
conduct and the extraneous conduct were one transaction, and the jury may have therefore read
the limiting instruction and thought there were other charges against appellant that were not
referenced during trial.

                                               7
acceptable trial strategy to object to an otherwise appropriate jury charge. Indeed,
the Court of Criminal Appeals has analyzed sua sponte defensive instructions and
found no error when, like here, the instructions are raised by the evidence and
correctly stated. See, e.g., Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App.
1998); Fair v. State, 465 S.W.2d 753, 754–55 (Tex. Crim. App. 1971). For
example, in Fair, the defendant argued that the trial court erred by overruling his
objection to a limiting instruction on extraneous offenses that the court included in
the jury charge. Fair, 465 S.W.2d at 754. The Court held that although the trial
court was not required to give the limiting instruction, it “was not harmful but
beneficial to the appellant.” Id. at 755. The Court concluded that instructing the
jury—over the defendant’s objection—that it could consider the extraneous offense
only for a limited purpose was not reversible error. Id.; see also Easter v. State,
867 S.W.2d 929, 941 (Tex. App.—Waco 1993, pet. ref’d) (including extraneous
offense limiting instruction to which defendant objected did not constitute
reversible error); Jasso v. State, 699 S.W.2d 658, 662 (Tex. App.—San Antonio
1985, no pet.) (same).

      Like Fair, the limiting instruction here would be considered beneficial to the
defendant. See Fair, 465 S.W.2d at 754; Easter, 8637 S.W.2d at 941; Jasso, 699
S.W.2d at 662. As such, the trial court’s inclusion of this instruction was not
reversible error. See Fair, 465 S.W.2d at 755.

      The jury charge contained no error. Accordingly, we overrule appellant’s
second issue.




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                                  III.   CONCLUSION

      We affirm the judgment of the trial court.



                                             /s/   Marc W. Brown
                                                   Justice



Panel consists of Justices Busby, Donovan, and Brown.
Publish — Tex. R. App. P. 47.2(b).




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