             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00028-CR
     ___________________________

  FREDDIE PILAR BUSTOS, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 372nd District Court
         Tarrant County, Texas
       Trial Court No. 1472251D


   Before Gabriel, Kerr, and Birdwell, JJ.
  Memorandum Opinion by Justice Birdwell
                           MEMORANDUM OPINION

      Appellant Freddie Pilar Bustos was convicted of aggravated assault for shooting

his then-wife. On appeal, he contends that the trial court should have admitted her

medical records, arguing that they were necessary to impeach her false testimony

concerning a mental health consultation she had years prior to the shooting.

      But there was no lie to impeach—Complainant readily admitted the very

propositions he sought to prove—and the records had nothing to do with the shooting.

Therefore, in its discretion, the trial court therefore could have rightly excluded the

records as irrelevant. Moreover, Bustos was attempting to undermine Complainant’s

general credibility using events unrelated to this case, and the court could thus have

properly disallowed the records as impeachment concerning a collateral matter. We

therefore affirm.

                                 I.     BACKGROUND

      At trial, Complainant summarized the history of her relationship with Bustos.

She explained that she began dating him in 2012, and by the end of the year, they had

moved in together. According to Complainant, their relationship was always violent

and volatile, with frequent separations and reconciliations.1 But the couple was in a


      1
         In 2013, for instance, Bustos beat her as they drove home after a night at a club
and forced her out of the car around 1:00 in the morning, leaving her without a phone
in a strange area. The next day, Bustos apologized, and they made up, but within four
months’ time they had broken up and reconciled many times over. In another incident
during a period when they had separated, the father of Complainant’s children came
over to see the children (or, according to Bustos, slept over), and he found Bustos

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good patch in September of 2016. Bustos was drinking less and treating her better, and

they were taking family trips together. Complainant described their relationship, in that

moment, as “perfect.”

        On Sunday night of Labor Day weekend, Bustos suggested that they go out.

They went to a pool hall around midnight, where they ordered drinks. Bustos was

snappish and angry. Complainant thought food might improve his spirits, so she asked

to go to Taco Bell. As they entered the drive-through, Bustos had a pearl-handled .22

pistol on his lap, as he often did while driving. The two ordered food and left.

        Bustos wanted to go to a strip club and rob a patron. Complainant asked to be

taken home. Bustos began calling her names and took her to the club anyhow. The

club was empty when they arrived, so, there being no one to rob, Bustos ordered a

bucket of beers. By the time the club closed thirty minutes later, Bustos’s mood had

worsened. Complainant began to have doubts about their relationship as they drove

away.

        Complainant suggested that they go back to Taco Bell. When Bustos pulled into

the parking lot, she told him that she could not be with him anymore. Bustos was

furious. He took the pistol from his lap and whipped her face. He then shot at her and



lurking in her backyard in the early morning. Bustos attacked him with a baseball bat
and was arrested. By 2014, the couple had reconciled and married. By 2016, during a
period when they had again separated and Bustos had moved out, Complainant awoke
to find Bustos in her room, “furious” at finding text messages between her and “another
gentleman.” Bustos broke her phone and threw it out his car window as he drove away.

                                           3
missed. Complainant tried to get out of the car, but Bustos sped away before she could

do so.

         Bustos drove onto the highway and stopped suddenly on the shoulder. He said,

“Get out now, bitch,” and fired several shots at her. Complainant’s eyes went blurry,

and she felt blood dripping from her face. Some of the shots had missed, but one had

ripped through her left eye and come out near her temple, and another had glanced off

her skull. Complainant pleaded with him to stop, but Bustos told her “to just sit back

and die” and started driving again. She asked him to take her to the hospital, saying

that she would not tell anyone he had shot her, and eventually Bustos complied. Bustos

let her out a few blocks from the hospital and drove off. Complainant flagged down a

passing motorist, who took her to the emergency room. She lost her left eye.

         A few weeks after the shooting, Bustos called Complainant and apologized.

Bustos asked her to come to San Antonio, where he was hiding from authorities. She

agreed and drove to meet him. During their rendezvous, the two pulled up to a store

together, and a SWAT team swept in behind them and arrested Bustos.

         On cross-examination, Bustos tried various approaches to undercut

Complainant’s credibility. For example, he impeached the clarity of her memory, both

in general and on the night of the shooting, and he drew out inconsistencies in her

testimony, such as when she downplayed the amount she had to drink that night.

         However, the trial court prevented Bustos from developing another angle of

attack, which is the subject of this appeal. Bustos cross-examined Complainant about

                                           4
her mental health, asking if she had sought “any kind of therapy or counseling before.”

She initially denied receiving any such treatment. However, seconds later, she asked for

clarification of Bustos’s question. When the question was clarified, she responded that

she had one mental health consultation years before the shooting, though she could not

recall whether the consultation was in 2007 or 2008.

      To impeach her recollection, Bustos offered medical records concerning that

consultation. The records would have informed the jury that the consultation took

place in 2010, not 2007 or 2008. The records reflected that Complainant was still

suffering from her mother’s death the year before, and she had a violent outburst during

a fight with her then-significant other; Complainant cried, slashed his tires, and scraped

her wrist with a knife, leading her to seek treatment. The records also disclosed that

one of Complainant’s family members had bipolar disorder.

      The State objected to the medical records, arguing that they were irrelevant under

Rule of Evidence 401 and substantially more prejudicial than probative under Rule 403.

The trial court sustained both objections and excluded the evidence. However, the trial

court allowed Bustos to clarify the date of the consultation; on further examination,

Complainant agreed that it took place in 2010.

      After the close of the evidence, the jury found Bustos guilty of aggravated assault.

Bustos pleaded true to a repeat-felony-offender enhancement, and the trial court

assessed punishment at forty-five years’ confinement. He appeals.



                                            5
                                    II.    Discussion

       In his sole point, Bustos argues that the trial court abused its discretion when it

excluded Complainant’s medical records. According to Bustos, the records were

essential to impeaching Complainant’s account of her mental health consultation and

the confrontation that precipitated it. He asserts that, contrary to the State’s objections

at trial, this evidence passes muster under Rules 401 and 403. 2

       If the trial court’s evidentiary ruling is correct under any applicable theory of law,

it will not be disturbed. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016).

We review the trial court’s decision to exclude evidence under an abuse of discretion

standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). A trial court

abuses its discretion when its decision lies outside the zone of reasonable disagreement.

Id. We may not substitute our own decision for that of the trial court. Id. Different

trial judges may reach different conclusions in different trials on substantially similar

facts without abusing their discretion. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim.

App. 2018). “A trial court judge is given considerable latitude with regard to evidentiary

rulings.” Id.

       Relevant evidence is generally admissible, and irrelevant evidence is not.

Gonzalez, 544 S.W.3d at 370. Under Rule 401, relevant evidence is evidence which has



       Bustos did not preserve any argument related to the Confrontation Clause, and
       2

we therefore do not consider its application to these facts. See Reyna v. State, 168 S.W.3d
173, 179 (Tex. Crim. App. 2005).

                                             6
any tendency to make the existence of any fact of consequence more or less probable

than it would be without the evidence. Id. “Evidence does not need to prove or

disprove a particular fact by itself to be relevant; it is sufficient if the evidence provides

a small nudge toward proving or disproving a fact of consequence.” Id.

       In his brief, Bustos offers only one reason why the medical records were relevant.

He argues that during cross-examination, Complainant “unequivocally denied from the

witness stand in the presence of the jury . . . ever having been treated for mental health

issues.” He says that the medical records, which confirmed that she did in fact have a

mental wellness consultation, would have shown that she “was lying to the jury from

the witness stand” and undercut her credibility as the sole eyewitness to the shooting.

       But Bustos mischaracterizes this evidence when he says it demonstrates that

Complainant lied about her mental health treatment, and he overstates the evidence’s

probative value. Rather, as we explain, the trial court could have rationally concluded

that the evidence was irrelevant because (1) the supposed “lie” was simply a

misstatement produced by unclear questioning; (2) any mistaken impression left by her

response was resolved seconds later, after the question was clarified; and (3) the

evidence itself was entirely unrelated to any issue of consequence in the case.

       The disputed testimony occurred as counsel for Bustos subtly switched topics.

Counsel had been asking Complainant a series of questions about events in the days

after the shooting. Counsel asked her to review medical records concerning her

treatment at the hospital, and Complainant obliged. Counsel also asked whether she

                                              7
spoke to detectives at the hospital, and she said she had. Counsel then inquired whether

she was taking any kind of medication while she was in the hospital or on the day of

her release, and Complainant explained that she had discontinued medication by the

time she was discharged. Counsel asked, “Were you in any kind of therapy or

counseling?” Complainant replied that she was not.

      Then, without clearly indicating that she was transitioning to a new area of

inquiry unrelated to the immediate aftermath of the shooting, counsel asked whether

Complainant had “ever done any kind of therapy or counseling before?” She responded

that she had not. However, moments later, Complainant asked for clarification of the

question and, upon clarification, readily admitted that she had a mental health

consultation years prior to the 2016 shooting:

      Q.     Had you ever sought any kind of treatment for any kind of mental
             health or stress issues?
      A.     Not that I know of.
      Q.     So you didn’t really—you were just able to handle all this yourself?
      A.     This—this, what I’m going through right now?
      Q.     This or any other episode in your life.
      A.     Just back in 2007 and I think 2008, my mom passed away so I
             checked myself into JPS to get some medicine. They discharged
             me within 12 hours and said I was just having a depressed moment
             and prescribed me some pills.
      Q.     Do you recall what year that was?
      A.     2007, ‘08. I’m not for sure.



                                            8
      This was the totality of the “lie” that Bustos sought to use her medical records

to expose: in response to an unclear shift in the subject of questioning, Complainant

gave a mistaken response that she corrected seconds later, when the question was

clarified. Similarly, Complainant initially could not remember the exact year the

consultation occurred, but upon further examination, she readily agreed that the year

was 2010. The medical records would have had little probative value in impeaching her

concerning things she freely admitted, because there was little contradiction to impeach.

See Hager v. State, 734 S.W.2d 180, 183 (Tex. App.—Eastland 1987, pet. ref’d)

(concluding that when the theft defendant, a jeweler, admitted that a previous customer

had accused him of switching rings left for repair, there was nothing left to impeach,

and the previous customer’s testimony concerning that incident should not have been

admitted as impeachment).

      Moreover, beyond the fact that Complainant admitted the very propositions

which Bustos claims the medical records would have proved, those propositions were

already at the margins of relevance. The unrelated facts described in the medical

records—a 2010 confrontation with a different man, leading to a consultation in which

she was not diagnosed with any disorder—would have done nothing to complete the

jury’s picture of the 2016 shooting. See Patrick v. State, No. 05-18-00435-CR, 2018 WL

3968781, at *1, *25–26 (Tex. App.—Dallas Aug. 20, 2018, no pet.) (mem. op., not

designated for publication) (upholding the exclusion of the complainant’s records

which documented her mental health problems and her confrontation with a CPS

                                           9
worker, because the confrontation occurred long before the complainant’s murder and

was unrelated to the circumstances of the offense or to the defendant—a boyfriend

with whom she had a volatile relationship). And considering that Complainant testified

about the consultation nearly nine years after it occurred, her inexact memory of the

date proved little beyond what was already self-evident: human memory’s limited ability

to hold mundane details over long periods. See Goggans v. State, No. 05-90-00761-CR,

1992 WL 134744, at *4 (Tex. App.—Dallas June 4, 1992, no pet.) (per curiam) (not

designated for publication) (upholding exclusion of “irrelevant” questions concerning

complainant’s memory of events unrelated to and occurring long before the assault,

calling it “common knowledge” that memory of trivialities fades over time). This

discrepancy in dates would hardly tend to show that a woman with a glass eye could

have forgotten the bullet, the gun, and the man who gave her the glass eye. Because

the content of the medical records was scarcely probative of the issues in this case—

and because Complainant freely admitted that content, leaving little room for

impeachment—the trial court could have properly excluded the medical records as

irrelevant.

       In the alternative, even assuming that the medical records held probative value,

the trial court could have just as readily concluded that this impeachment evidence

concerned a collateral matter, in that it went only to Complainant’s general credibility

as demonstrated through facts unrelated to the shooting. The trial court therefore could



                                          10
have properly excluded the medical records as impeachment concerning a collateral

matter.

       In general, a defendant is not entitled to impeach a witness regarding collateral

matters. Wamsley v. State, No. 2-06-089-CR, 2008 WL 706610, at *8 (Tex. App.—Fort

Worth Mar. 13, 2008, pet. ref’d) (mem. op., not designated for publication) (citing

Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990)). A collateral matter is

one which seeks only to test a witness’s general credibility or concerns facts irrelevant

to the issues at trial. Id. (citing Keller v. State, 662 S.W.2d 362, 365 (Tex. Crim. App.

1984), and Cortez v. State, No. 2-05-147-CR, 2006 WL 1563275, at *11 (Tex. App.—

Fort Worth June 8, 2006, pet. ref’d) (mem. op., not designated for publication)); cf.

Hammer v. State, 296 S.W.3d 555, 562 (Tex. Crim. App. 2009) (“[T]here is an important

distinction between an attack on the general credibility of a witness and a more

particular attack on credibility that reveals ‘possible biases, prejudices, or ulterior

motives of the witness as they may relate directly to issues or personalities in the case

at hand.’” (quoting Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974))). But

a question is not collateral if it seeks to test the truthfulness of a witness’s testimony on

direct concerning the facts and circumstances surrounding the criminal transaction.

Keller, 662 S.W.2d at 365.

       Thus, in a case where the defendant was accused of sexual assault, we held that

the defendant was not entitled to impeach the complainant on her testimony

concerning how many nights she had previously spent in the neighborhood where the

                                             11
offense occurred; we held this to be a collateral detail unrelated to the true issues at trial.

Holloway v. State, 695 S.W.2d 112, 118–19 (Tex. App.—Fort Worth 1985), aff’d, 751

S.W.2d 866 (Tex. Crim. App. 1988). In another case, where the defendant was accused

of murdering his parents, we held the defendant was not entitled to impeach his sister

concerning her testimony that the victims had always supported her, for this

impeachment would only undermine his sister’s general credibility vis-à-vis matters

unrelated to the murders. Wamsley, 2008 WL 706610, at *8.

       If the medical records held probative value, any probative value would flow from

their tendency to impeach Complainant over collateral matters: her general credibility

as demonstrated by matters unrelated to the case. The medical records reflected that

in 2010, she became hysterical during a fight with her then-boyfriend and slashed his

tires and her wrist, leading her to seek a mental health consultation.                But the

consultation and the outburst that precipitated it were not related to the circumstances

under which Bustos shot her. The outburst and consultation occurred two years before

Complainant even met Bustos and six years before the shooting. Bustos has not

suggested that these events reveal something about what occurred on the night of the

offense; he does not claim that Complainant was hysterical prior to the shooting or that

she was the aggressor. Rather, any probative value would stem from the records’

tendency to test Complainant’s general credibility and memory concerning unrelated

events. The medical records and their subject matter were thus collateral to the issues

in the case.

                                              12
      The trial court was within its discretion to disallow the medical records on

grounds of relevance, and it could have also done so on grounds of collateral

impeachment. We therefore hold that the trial court did not exceed its “considerable

latitude” in excluding the evidence. See Fowler, 544 S.W.3d at 848. We overrule Bustos’s

sole point.

                                  III.   Conclusion

      We affirm the trial court’s judgment.

                                                      /s/ Wade Birdwell

                                                      Wade Birdwell
                                                      Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: April 23, 2020




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