      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00189-CR



                             Abraham Alberto Vizcarra, Appellant

                                                  v.

                                   The State of Texas, Appellee


       FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
            NO. 60659, HONORABLE FANCY H. JEZEK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted Abraham Alberto Vizcarra of the offense of sexual assault. See

Tex. Penal Code Ann. § 22.011 (West Supp. 2008). Punishment was assessed at eight years’

imprisonment. In four issues on appeal, Vizcarra contests the district court’s denial of a challenge

for cause during jury selection, claims that the district court abused its discretion in admitting and

excluding certain testimony, and asserts that the district court erred in denying his motion for

directed verdict. We will affirm the judgment.


                                         BACKGROUND

               We will discuss the underlying facts of this case to the extent they are necessary to our

disposition of Vizcarra’s appeal. The jury heard evidence that, on the night of December 10, 2006,

Vizcarra had sexual intercourse with K.F., his sixteen-year-old niece. K.F. testified that Vizcarra

entered her room, got into bed with her, and “had sex” with her. When asked if she was talking
about sexual intercourse, K.F. testified, “Yes.” After Vizcarra left her room, K.F. recounted,

she went into the computer room at her house and sent an instant message to Fernando Lasso, a

family friend, telling him what Vizcarra had done to her. When asked what she told Lasso in the

message, K.F. testified, “I said that [Vizcarra] had raped me.” That night, K.F. also reported the

incident to her mother, Patricia Foley, and her other uncle, Alvaro Vizcarra. The jury heard

testimony from Foley, Alvaro, and Lasso about what K.F. had reported to them and about their

recollections of what happened that night.

               The jury also heard evidence from Detective Noreen Elizabeth Faes of the

Killeen Police Department Youth Services Unit, who took K.F.’s statement during the police

investigation. Detective Faes testified that K.F. told her that Vizcarra “had sex with her.” Faes also

testified that she made K.F. “specify what he did to her” and that K.F. did so. However, Faes did

not testify to what, specifically, K.F. told her. Over objection by defense counsel, Faes further

testified that, in her discussions with K.F., she believed her to be truthful.

               The jury convicted Vizcarro of sexual assault, and he was sentenced to eight years’

imprisonment. This appeal followed.


                                             ANALYSIS

Challenge for cause

               In his first issue, Vizcarra asserts that the district court abused its discretion in

denying one of his challenges for cause during jury selection.

               “A challenge for cause is an objection made to a particular juror, alleging some fact

which renders the juror incapable or unfit to serve on the jury.” Tex. Code Crim. Proc. Ann. art.

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35.16(a) (West 2006). A prospective juror may be challenged for cause if he has a bias or prejudice

against any of the law applicable to the case upon which the defense is entitled to rely. Id. art.

35.16(c)(2). “The test is whether the bias or prejudice would substantially impair the prospective

juror’s ability to carry out his oath and instructions in accordance with law.” Feldman v. State,

71 S.W.3d 738, 744 (Tex. Crim. App. 2002). Before a prospective juror can be excused for cause

on this basis, however, the law must be explained to him and he must be asked whether he

can follow that law regardless of his personal views. Jones v. State, 982 S.W.2d 386, 390

(Tex. Crim. App. 1998). “The proponent of a challenge for cause has the burden of establishing his

challenge is proper.” Feldman, 71 S.W.3d at 747. The proponent does not meet his burden until he

has shown that the venireperson understood the requirement of the law and could not overcome her

prejudice well enough to follow it. Id.

               We     review    a   trial   court’s       ruling   on   a   challenge   for   cause   with

“considerable deference” because the trial court is in the best position to evaluate the venireperson’s

demeanor and responses. Russeau v. State, 171 S.W.3d 871, 879 (Tex. Crim. App. 2005); Blue

v. State, 125 S.W.3d 491, 497 (Tex. Crim. App. 2003). We will reverse a trial court’s ruling on a

challenge for cause “only if a clear abuse of discretion is evident.” Blue, 125 S.W.3d at 497.

“We review the trial court’s decision in light of the venireperson’s voir dire as a whole. When the

record does not contain a clearly objectionable declaration by the venireperson, or the record

demonstrates a vacillating or equivocal venireperson, we accord great deference to the trial judge

who had the better opportunity to see and hear the person.” Swearingen v. State, 101 S.W.3d 89, 99

(Tex. Crim. App. 2003). “The trial court is able to consider important factors such as demeanor



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and tone of voice that do not come through when reviewing a cold record.” Banda v. State,

890 S.W.2d 42, 54 (Tex. Crim. App. 1994); Bell v. State, 233 S.W.3d 583, 591

(Tex. App.—Waco 2007, pet. ref’d). In reviewing a trial court’s ruling on a challenge for cause, we

review the totality of the voir dire testimony to determine whether it supports the trial court’s finding

with respect to whether the prospective juror is able to follow the law as instructed. See King

v. State, 29 S.W.3d 556, 568 (Tex. Crim. App. 2000); Murphy v. State, 229 S.W.3d 334, 339

(Tex App.—Amarillo 2006, pet. ref’d).

                Defense counsel elicited the following testimony from prospective juror “No. 22”:


        [Defense counsel]:      [Venireperson], you indicated that—I think, that you needed
                                to kind of approach and let us know some things outside of
                                everyone’s hearing.

        [Venireperson]:         Well, yes, my hesitation is because my daughter was sexually
                                assaulted in college. And the man was not caught and never
                                prosecuted, to my knowledge. And I’m not saying I couldn’t
                                do it, but I don’t know the circumstances and I can, in my
                                mind, think of some certain words that might set me off, just
                                to be very honest with you. You know, that might make me
                                more biased than I would have been otherwise.

        [Defense counsel]:      Do you feel that affects your ability to judge this case on the
                                evidence in this case?

        [Venireperson]:         I don’t know, to tell you the truth, I don’t know. That’s why
                                I brought it to your attention.

        [Defense counsel]:      Yes, ma’am.

        [Venireperson]:         I don’t—in most cases I can be very fair. But I’m not
                                positive.

        [Defense counsel]:      You understand that at the point of selecting a jury, that it is
                                not proper for us to lay out all the evidence at this time.

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        [Venireperson]:         Sure, sure. Oh, yes, I do. I’m not asking that. I’m just telling
                                you this is my thought on it.

        [Defense counsel]:      But if you’re not sure, how do we—how do we make that
                                determination here without you having heard the evidence?

        [Venireperson]:         I’m just informing you, that’s—that’s all I’m doing.


Following this exchange, defense counsel challenged the venireperson for cause. Initially, the

district court granted the challenge, but the State objected. After hearing argument, the district court

reversed its decision and denied the challenge for cause.

                On this record, we cannot conclude that the district court’s denial of the challenge for

cause constituted an abuse of discretion. The venireperson testified that, because her daughter was

sexually assaulted in college, “certain words” “might set [her] off” and “make [her] more biased than

[she] would have been otherwise.” However, this testimony was never clarified or elaborated upon.

Defense counsel did not explain the law to the venireperson and ask her whether she could

follow the law regardless of her personal views. As the proponent of the challenge for cause, it was

defense counsel’s burden to establish that the challenge was proper, and the record supports the

district court’s finding that defense counsel did not satisfy this burden. Defense counsel did not elicit

any testimony from the venireperson on whether her “bias or prejudice would substantially impair

the prospective juror’s ability to carry out [her] oath and instructions in accordance with law.” See

Feldman, 71 S.W.3d at 744. In fact, when asked if her personal experience affected her ability to

judge the case based on the evidence, the venireperson testified, “I don’t know, to tell you the truth,

I don’t know.” She added, “[I]n most cases I can be very fair. But I’m not positive.” Thus, the

record reflects, at most, a vacillating or equivocal venireperson, and, on such a record, we must

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defer to the district court’s discretion. See Blue, 125 S.W.3d at 499; see also Gonzalez v. State,

No. 08-06-00301-CR, 2008 Tex. App. LEXIS 2765 (Tex. App.—El Paso Apr. 17, 2008, no pet. h.)

(not designated for publication) (in sexual assault case, finding no abuse of discretion in denying

challenge for cause when prospective juror testified that her son had been similarly assaulted, but

equivocated on issue of whether she could overcome her bias).

                We overrule Vizcarra’s first issue.


Evidentiary issues

                In his second issue, Vizcarra asserts that the district court abused its discretion in

allowing Detective Faes to testify in response to the following question by the prosecutor, “In your

dealings with [K.F.], do you believe her to be a truthful person?” Detective Faes testified, “Yes.”

In his fourth issue, Vizcarra asserts that the district court abused its discretion in not allowing him

to cross-examine K.F.’s mother about her knowledge of a prior sexual-assault allegation made by

her daughter.

                We review decisions to admit or exclude evidence under an abuse of discretion

standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006). The trial court abuses

its discretion only when the decision lies “outside the zone of reasonable disagreement.” Walters

v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).

                On this record, we cannot conclude that the district court abused its discretion in

allowing Detective Faes to testify that she believed K.F. to be a “truthful person.” The credibility

of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject

to the following limitations: (1) the evidence may refer only to character for truthfulness or

                                                  6
untruthfulness; and (2) the evidence of truthful character is admissible only after the character of

the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Tex. R. Evid. 608(a). In this case, during the cross-examination of Alvaro Vizcarra, the brother of

the defendant, defense counsel elicited the following testimony:


       [Defense counsel]:      Do you believe [K.F.]’s reputation is good for being truthful?

       [Alvaro]:               No, it’s not good for being truthful. Definitely not.

       [Defense counsel]:      Do you personally have an opinion—your observation, not
                               reputation, do you have an opinion about whether she is a
                               truthful person?

       [Alvaro]:               Yes, I do.

       [Defense counsel]:      And what is your opinion about her truthfulness?

       [Alvaro]:               She’s not.


It was only after this testimony, which directly attacked K.F.’s character for truthfulness, that the

State asked Faes the following question, “In your dealings with [K.F.], do you believe her to be a

truthful person?” Faes answered, “Yes.” It was not “outside the zone of reasonable disagreement”

for the district court to conclude that this was admissible character evidence pursuant to rule 608(a).

See Schutz v. State, 957 S.W.2d 52, 72 (Tex. Crim. App. 1997) (“Although some minimal

relevance is required, general evidence supporting truthful character as outlined by Rule 608(a)

may be liberally employed to respond to attacks on truthful character: there need only be a

‘loose fit’ between the rebuttal evidence and the predicate attacks on character.”). We overrule

Vizcarra’s second issue.



                                                  7
                We also cannot conclude that the district court abused its discretion in limiting

Vizcarra’s cross-examination of K.F.’s mother, Patricia Foley. Outside the presence of the jury,

defense counsel informed the district court that he wanted to cross-examine Ms. Foley about prior,

allegedly false accusations of sexual abuse made by K.F. against her father in 1996. This testimony

was relevant, Vizcarra contended, to the issue of the credibility of the victim’s mother. Earlier in

her testimony, Foley had explained that she delayed reporting K.F.’s allegations to the authorities

for three days because she “did not know what to do.” According to Vizcarra, Foley had created

an impression with the jury that she was inexperienced in dealing with sexual assault allegations

against family members, and the evidence of her response to prior abuse allegations would tend to

rebut that testimony.

                The trial court denied Vizcarra’s request but allowed him to make a bill of

exceptions outside the presence of the jury. During the hearing on the bill, Ms. Foley testified

about the prior abuse allegations, which involved K.F.’s father, Foley’s brother, and Foley’s father.

When the allegations were being investigated, Foley remembered the authorities telling her that

“there was no proof of penetration,” but “that it didn’t mean [K.F.] wasn’t improperly touched.”

Foley also testified that she was pressured by her mother to “stop” the allegations or her father would

“go to jail.” Foley denied telling anyone that the allegations were false. The district court also heard

brief testimony from Foley’s mother, Doris Vizcarra, who testified that she did not know whether

the allegations were true or false. At the conclusion of the hearing, defense counsel renewed his

request “to be allowed to explore those allegations.” The district court again denied the request.




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               The Sixth Amendment guarantees an accused in a criminal prosecution

the right to confront the witnesses against him. U.S. Const. amend. VI; Davis v. Alaska,

415 U.S. 308, 315 (1974). A primary interest secured by the Confrontation Clause is the

right of cross-examination.    Davis, 415 U.S. at 315; Lopez v. State, 18 S.W.3d 220, 222

(Tex. Crim. App. 2000); Delamora v. State, 128 S.W.3d 344, 364 (Tex. App.—Austin 2004,

pet. ref’d). However, trial courts retain “wide latitude” and “broad discretion” to impose reasonable

limits on cross-examination to avoid, among other things, harassment, prejudice, confusion of the

issues, endangering the witness, and the injection of cumulative or collateral evidence. Delaware

v. Van Arsdall, 475 U.S. 673, 679 (1986); Lopez, 18 S.W.3d at 222; Delamora, 128 S.W.3d at 364.

As the Supreme Court has observed, “The 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.” Van Arsdall, 475 U.S. at 679.

               Here, Vizcarra sought to question Ms. Foley about her conduct during the

investigation of her daughter’s previous allegations of sexual abuse, in order to attack

Foley’s credibility. “Specific instances of the conduct of a witness, for the purpose of attacking or

supporting the witness’s credibility, other than conviction of crime as provided in Rule 609, may

not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.”

Tex. R. Evid. 608(b).      However, the Confrontation Clause may occasionally require the

admission of evidence that the Rules of Evidence would exclude. Lopez, 18 S.W.3d at 225. When

determining if otherwise inadmissible evidence should be admitted under the Confrontation Clause,

“the trial court must balance the probative value of the testimony against the risk its



                                                 9
admission entails.” Id. at 222. In a sexual-assault case, for evidence of extraneous allegations to be

admissible, “there must be a showing that the accusations were false.” Garcia v. State, 228 S.W.3d

703, 706 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

               In this case, the record supports the district court’s finding that no such showing was

made. Ms. Foley denied telling anyone that the prior accusations made by her daughter were false,

and Foley’s mother, Doris Vizcarra, testified that she did not know whether the allegations were true

or false. Foley also testified that she was pressured by her mother to “stop” the allegations or her

father would “go to jail.” Additionally, Foley testified that she remembered the authorities telling

her that, although “there was no proof of penetration,” this “didn’t mean [K.F.] wasn’t improperly

touched.” The record supports a finding by the district court that the probative value of the evidence

was low. See id.; see also Lopez, 18 S.W.3d at 225-26 (finding that decision not to pursue abuse

allegations “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 best be served by

closing the case.”); see also Lape v. State, 893 S.W.2d 949, 955 (Tex. App.—Houston [14th Dist.]

1994, pet. ref’d) (upholding exclusion of prior accusations of sexual assault against third parties

when appellant produced no evidence of falsity).

               On the other hand, the record also supports the district court’s finding that the risk

entailed in admitting the evidence was high. The risk factors involved in admitting extraneous

allegations of sexual abuse include prejudice, confusion of the issues, and the injection of cumulative

or collateral evidence. See Lopez, 18 S.W.3d at 222. In this case, the central issue at trial was

whether, on or about December 10, 2006, Vizcarra sexually assaulted K.F. The testimony Vizcarra



                                                  10
sought to elicit from the victim’s mother concerned how she responded to her daughter’s prior

sexual abuse allegations—from more than ten years ago—against people other than the defendant.

At most, this was a collateral issue that the district court could have found had a high risk of

prejudicing the jury, confusing the issues, and distracting the jury from the central issue of whether

Vizcarra committed the offense alleged. Thus, the district court did not abuse its discretion in

refusing to allow the testimony. See id. at 224 (“The increased emotional level associated with

sexual offenses is all the more reason to refuse to allow the jury to be additionally confused by

collateral acts of misconduct by a witness.”).

               We overrule Vizcarra’s fourth issue.


Motion for directed verdict

               In his third issue, Vizcarra contends that the district court erred in denying his

motion for a directed verdict. A complaint about the denial of a motion for directed verdict is in

actuality an attack upon the sufficiency of evidence to sustain the conviction. McDuff v. State,

939 S.W.2d 607, 613 (Tex. Crim. App. 1997); Hayden v. State, 155 S.W.3d 640, 642

(Tex. App.—Eastland 2005, pet. ref’d). We thus review this issue under the same standard of review

applicable to legal sufficiency challenges. See McDuff, 939 S.W.2d at 613.

               When there is a challenge to the legal sufficiency of the evidence to sustain a

criminal conviction, we consider whether a rational trier of fact could have found the essential

elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509

(Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict and

assume that the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew

                                                 11
reasonable inferences in a manner that supports the verdict.               See Rollerson v. State,

227 S.W.3d 718, 724 (Tex. Crim. App. 2007); Shams v. State, 195 S.W.3d 346, 347

(Tex. App.—Austin 2006, pet. ref’d) (citing Griffin v. State, 614 S.W.2d 155, 159

(Tex. Crim. App. 1981)). It is not necessary that every fact point directly and independently to

the defendant’s guilt, but it is enough if the conclusion is warranted by the combined and

cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007).

               A person commits the offense of sexual assault if he intentionally or knowingly

causes the penetration of the sexual organ of another person by any means, without that person’s

consent. See Tex. Penal Code Ann. § 22.011(a)(1)(A). Vizcarra asserts that, in this case,

“there is no evidence in the record upon which the jury could have found the element of penetration.”

               We disagree. This element of the offense is satisfied by proof of any penetration, no

matter how slight. Cowan v. State, 562 S.W.2d 236, 238 (Tex. Crim. App. 1978); Murphy v. State,

4 S.W.3d 926, 929 (Tex. App.—Waco 1999, pet. ref’d).                Penetration may be proved by

circumstantial evidence. Nilsson v. State, 477 S.W.2d 592, 595 (Tex. Crim. App. 1972). Contact

with the female sexual organ in a manner a reasonable person would consider more intrusive than

contact with the outer vaginal lips constitutes penetration. Vernon v. State, 841 S.W.2d 407, 409

(Tex. Crim. App. 1992).

               In this case, the victim testified that Vizcarra “had sex with her.” When asked if she

was talking about sexual intercourse, K.F. testified, “Yes.” Additionally, K.F. testified that she told

a family friend that Vizcarra “raped me.” Viewing this and other evidence in the light most



                                                  12
favorable to the verdict, we conclude that a rational jury could reasonably infer that Vizcarra

penetrated K.F.’s sexual organ with his sexual organ. See Watson v. State, 548 S.W.2d 676, 679

(Tex. Crim. App. 1977) (holding that victim’s testimony that defendant had “sexual intercourse”

with her was sufficient evidence of penetration); Clay v. State, 518 S.W.2d 550, 552

(Tex. Crim. App. 1975) (holding that victim’s testimony that defendant “raped me” was

sufficient evidence of penetration); see also Smith v. State, 60 S.W.3d 885, 890

(Tex. App.—Amarillo 2001, no pet.) (“One can reasonably infer that to have sex, there is penetration

of the female sex organ.”).

               We overrule Vizcarra’s third issue.


                                         CONCLUSION

               We affirm the judgment of the district court.




                                              ____________________________________________

                                              Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Affirmed

Filed: August 28, 2008

Do Not Publish




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