                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-14-00361-CR


                         ANTONIO RODRIGUEZ, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 251st District Court
                                   Randall County, Texas
                 Trial Court No. 25,234-C, Honorable Ana Estevez, Presiding

                                    October 23, 2015

                            MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Antonio Rodriguez was indicted for the offense of continuous sexual

abuse of a young child.1 A jury convicted him of the charged offense and assessed

punishment at thirty-five years’ confinement in prison. The trial court imposed sentence

accordingly and this appeal followed.




      1
          TEX. PENAL CODE ANN. § 21.02 (West 2014).
                                         Analysis


       Through three issues appellant argues his cross-examination of J.V., the child

complainant, was unreasonably limited by the trial court in violation of the Sixth

Amendment’s Confrontation Clause; the trial court erroneously directed the court

translator’s interpretation of appellant’s answer to a question; and the trial court

permitted a statement by the prosecutor in closing argument which injected a fact from

outside the record.    Because appellant does not challenge the sufficiency of the

evidence, we will discuss only the facts necessary for disposition of the appeal.


Confrontation Clause Violation


       By his first issue appellant argues the trial court erred by placing limits on his

cross-examination of J.V. about the “specific circumstances” of another sexual assault

committed against her by a third party, Jesus Manuel Torres-Ramirez. According to

appellant, he sought to demonstrate J.V. was confused or mistaken when she made the

outcry against appellant. He asserts the facts of the sexual assaults by the two men are

substantially similar, and that by limiting his cross-examination on their similarities, the

trial court denied him the right to fully confront his accuser, violating the Confrontation

Clause. The State resisted appellant’s effort to adduce evidence regarding the prior

sexual assault, citing Rule of Evidence 412.2 The disagreement was the subject of

repeated hearings outside the jury’s presence.


       2
         The rule provides in part that, in a prosecution for sexual assault, evidence of
specific instances of a victim’s past sexual behavior is inadmissible. TEX. R. EVID.
412(a)(2). The rule contains five exceptions including instances where evidence of a
victim’s past sexual behavior is constitutionally required to be admitted. TEX. R. EVID.
412(b)(2)(E).

                                             2
        During the State’s re-direct examination of J.V., she made a statement referring

to “what happened with someone else.”            The trial court at that point agreed with

appellant that the door had been opened before the jury to the subject of the other

man’s assault. The court compiled a list of questions it would permit appellant and the

State to propound to J.V. on that subject.


        As testimony before the jury resumed, appellant asked J.V. questions from the

court’s list, as did the State on its further examination. In response to these questions

J.V. testified that she was interviewed at the Bridge, a children’s advocacy center,

because of something done to her by someone other than appellant. 3 At the March

2010 interview, she told the interviewer that no one had “ever done something like that

to [her] before.” On the State’s redirect-examination, J.V. testified she told the Bridge

interviewer in 2010 nothing similar had happened because she did not want to cause

her mother stress. She explained her concern for her mother at that time stemmed in

part from her brother’s accidental death. She further testified the person responsible for

the assault, Torres-Ramirez, pled guilty and went to prison. On re-cross examination,

J.V. conceded that her brother was killed in November 2012 and his death had nothing

to do with her reluctance to make her mother aware of appellant’s abuse of her in March

2010.


        The State here argues appellant’s issue on appeal presents nothing for our

review, and we must agree. Although appellant expressed objection to the exclusion of


        3
        The record shows J.V. was interviewed at the Bridge in March 2010 after
making an outcry against Torres-Ramirez. There was evidence that appellant’s sexual
abuse of J.V. predated March 2010. Following her outcry of sexual assault by
appellant, J.V. was interviewed at the Bridge in August 2011.

                                             3
testimony regarding the Torres-Ramirez assault, he raised no objection to the court’s list

of permissible questions, and in fact propounded them to J.V. in front of the jury.

Appellant’s point on appeal must be that his cross-examination was unconstitutionally

limited even with the questions permitted by the court, but no such assertion ever was

made to the trial court. See Wright v. State, 28 S.W.3d 526, 536 (Tex. Crim. App. 2000)

(holding by failing to raise Confrontation Clause objection in the trial court, appellant

waived the issue on appeal); Acevedo v. State, 255 S.W.3d 162, 173 (Tex. App.—San

Antonio 2008, pet. refused) (“To preserve denial of a right to confrontation error, one

must specifically object based on the Confrontation Clause”).


      Further, the record contains a good deal of evidence regarding the Torres-

Ramirez assault of J.V.     The child’s narrative description of the sexual assault by

Torres-Ramirez was contained in the SANE report from 2010, which was before the

jury. The SANE report and a video of the 2011 Bridge interview after her outcry against

appellant also were before the jury.       Those reports and J.V.’s responses to the

questions the court permitted about the Torres-Ramirez assault allowed appellant’s

counsel to argue the assaults by the two men were similar, and argue J.V. was

confused. Counsel made such arguments to the jury. Further, in her testimony the

child admitted she denied, in the 2010 interview, that anyone else had sexually abused

her. And appellant’s counsel effectively impeached her initial rationale for not disclosing

in 2010 the claimed sexual assault by appellant. Were we to agree the court erred by

limiting cross-examination of J.V., we would conclude reversal is not warranted, even

under the standard for constitutional harmless-error review. TEX. R. APP. P. 44.2(a)

(“the court of appeals must reverse a judgment of conviction . . . unless the court


                                            4
determines beyond a reasonable doubt that the error did not contribute to the

conviction . . . .”). Appellant’s first issue is overruled.


Court’s Direction of Interpreter’s Translation


       According to the record, appellant speaks some English but preferred to testify at

trial with a Spanish-language interpreter. By his second issue, appellant argues the trial

court reversibly erred by ordering the interpreter to state only a “yes” or “no” answer for

appellant’s more substantial response in Spanish to a direct-examination question. The

trial judge speaks Spanish. The issue arises from the following colloquy:


       Q.      Thinking about the term that we just mentioned, instead of using
               the term masturbation, and you understanding what that means,
               have you done that during your life?

       A.      Yes.

       Q.      Specifically, have you ever done such a thing in front of [J.V]?

       A.      Of course not.

       Q.      Secondly, have you ever had [J.V.] assist you in that sort of
               activity?

       A.      (The Defendant begins answering in Spanish.)

       [The Prosecutor]: I am going to object. Nonresponsive. No way all that
             could be a “Yes” or “No.”

       [The Court]: You know, my problem right now is: I know everything he
             said. So it was more than “Yes” or “No,” but it was responsive. But
             I will sustain the objection.

               So just translate the “Yes” or “No,” the first part of his answer.

       A.      No, of course not.

                                                5
       [Defense Counsel]: I will pass the witness.

       Appellant’s issue is actually two complaints. First, he argues the court erred by

sustaining the State’s objection, since it found appellant’s answer responsive. Second,

he contends the court abused its discretion by instructing the translator to limit the

translation of appellant’s answer to, “No, of course not.”


       We find appellant’s issue meritless. The issue attempts to pursue on appeal a

claim of non-fundamental error4 which trial counsel chose not to pursue. It is evident to

us trial counsel was satisfied with the translated answer, “No, of course not.”


       Regardless how the trial court understood appellant’s response to the

prosecutor’s question, its substance was not preserved through an offer of proof. We

are therefore unable to say whether it was or was not responsive to counsel’s question.

There was no objection to the court’s order directing the translation of appellant’s

response. Nothing is preserved for our review. TEX. R. EVID. 103(a), TEX. R. APP. P.

33.1(a). Appellant’s second issue is overruled.


Complaint of Improper Jury Argument


       In his third issue appellant asserts “the trial court erred by allowing improper

character evidence during closing argument.” We understand the issue as a complaint

that the trial court erroneously permitted the prosecutor to stray outside the record in

closing argument.

       4
         “In criminal cases, a court may take notice of a fundamental error affecting a
substantial right, even if the claim of error was not properly preserved.” TEX. R. EVID.
103(e). See Lindsey v. State, No. 01-13-01008-CR, 2015 Tex. App. LEXIS 9987, at *2-
3 (Tex. App.—Houston [1st Dist.] Sept. 24, 2015, no pet. h.) (per curiam) (mem. op., not
designated for publication) (identifying types of errors considered fundamental).

                                             6
      As noted, during a hearing outside the presence of the jury the trial court crafted

questions permissible for the parties’ examination of J.V. on the matter of the sexual

assault by Torres-Ramirez. The following discussion occurred during that hearing:


      [The Prosecutor]: Okay. So I can come back and say that he pled guilty
            and he is in prison now and admitted?

      [The Court]: Yes.

      [The Prosecutor]: Okay.

      [The Court]: But you can’t make any suggestion that someone should or
            should not have done the same thing.

      [Defense Counsel]: And you can’t make any suggestions that she told the
            truth, and that is why the person is in prison.

      [The Court]: Yes. Don’t ask whether—Don’t make any comments on
            whether or not she told the truth. Just say, “And that person pled
            guilty.”

             You can do that in closing argument.

      [The Prosecutor]:     Argue that she told the truth?

      [The Court]: Yeah.

      [The Prosecutor]:     Okay.

      During the following direct examination, J.V. agreed with the prosecutor that as a

result of the charges brought against him, Torres-Ramirez pled guilty and went to

prison.


      Appellant’s complaint here springs from the following occurrence during the

State’s closing argument:


      And the police came. She went and got an exam. She went to the
      Bridge, just like she did in this case. And charges were filed, just like in
      this case. And in that case, you heard evidence—[J.V.] told you—he

                                            7
      came in and pled. She did not testify. He came in and took responsibility
      for his actions and he went to prison. He said, “She told the truth.”

      [Defense Counsel]: Objection, Your Honor. That was not a part of the
            record. And she is saying that he went to prison because she told
            the truth. And that violates the prior instruction of the Court
            regarding that issue, Your Honor.

      [The Court]: Okay, I didn’t make an instruction. So I am going to overrule
            your objection. I am going to ask you to just move on.

(Emphasis added).


      We review a trial court’s ruling on an objection of improper jury argument for

abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). The

purpose of closing argument is to assist the fact-finder in drawing proper conclusions

and inferences from the evidence. Gaddis v. State, 753 S.W.2d 396, 400

(Tex.Crim.App. 1988); Graves v. State, 176 S.W.3d 422, 431 (Tex. App.—Houston [1st

Dist.] 2004, pet. stricken).   Argument that (1) summarizes the evidence, (2) is a

reasonable deduction from the evidence, (3) answers argument of opposing counsel, or

(4) is a plea for law enforcement, is permissible and proper.       Brown v. State, 270

S.W.3d 564, 570 (Tex. Crim. App. 2008). Argument that interjects facts not supported

by the record is improper. See id. (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex.

Crim. App. 1988)). Counsel is generally given wide latitude to draw inferences from

evidence, so long as they are reasonable, fair, legitimate, and offered in good faith. See

Gaddis, 753 S.W.2d at 398.


      We are not shown, nor do we find, any evidence attributing to Torres-Ramirez an

express statement that J.V. “told the truth.” It is undisputed, however, that Torres-

Ramirez pled guilty to charges that were based on her outcry. The prosecutor might


                                            8
better have curtailed her argument, but the trial court did not exceed its discretion by

treating the argument as a reasonable inference from his guilty plea.


         Moreover, even if the trial court erred by overruling appellant’s objection, the

error was harmless. We ordinarily review improper jury argument under appellate rule

44.2(b). TEX. R. APP. P. 44.2(b); Martinez v. State, 17 S.W.3d 677, 692-93 (Tex. Crim.

App. 2000). In light of J.V.’s testimony, her Bridge interview, the SANE reports, and

even appellant’s own testimony, appellant’s substantial rights were not affected by the

prosecutor’s statement that by pleading guilty Torres-Ramirez affirmed her truthfulness.

See TEX. R. APP. P. 44.2(b); cf. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App.

1998) (looking to federal caselaw analysis for gauging harm under rule 44.2(b)).

Appellant’s third issue is overruled.


                                        Conclusion


         Having overruled each of appellant’s issues, we affirm the judgment of the trial

court.


                                                 James T. Campbell
                                                     Justice


Do not publish.




                                             9
