  Opinion filed September 24, 2009




                                                            In The


    Eleventh Court of Appeals
                                                        ___________

                                                 No. 11-07-00329-CR
                                                     __________

                              FRANK GUERRA DELAPAZ, Appellant

                                                                V.

                                         STATE OF TEXAS, Appellee


                                     On Appeal from the 70th District Court
                                              Ector County, Texas
                                        Trial Court Cause No. A-33,441



                                                        OPINION
          The jury convicted Frank Guerra Delapaz1 of aggravated sexual assault of a child and
indecency with a child. The jury assessed his punishment at confinement for life and a $10,000 fine
for the aggravated sexual assault conviction and confinement for twenty years and a $10,000 fine
for the indecency with a child conviction. Delapaz challenges his convictions with one issue on
appeal. We affirm.
                                                     Background Facts
        Delapaz assaulted and molested his twelve-year-old daughter N.D. during weekend visitations.
Delapaz lived in a studio apartment with one room and one bed. N.D. shared this bed with him, while


           1
             We note that appellant’s last name is spelled in the indictment and judgment as “Delapaz.” However, appellant has signed
his last name throughout other places in the clerk’s record as “De La Paz.”
Delapaz’s two sons slept on the floor. N.D. testified that Delapaz touched her while she slept and that
he penetrated her digitally. Delapaz also testified and admitted touching his daughter’s breasts and
digitally penetrating her. During the punishment phase, N.D. described the impact her father’s actions
have had on her, including three attempted suicides. Delapaz argued that N.D.’s testimony opened
the door to evidence that she had been previously assaulted by another relative, and he requested leave
to question her about this. The trial court denied his request.
                                               Analysis
       Delapaz’s sole contention is that the trial court erred by not allowing him to cross-examine
N.D. concerning the previous sexual assault committed against her. He argues that the evidence was
admissible because the Texas Rape Shield Law does not apply or, alternatively, that it was admissible
pursuant to the rule of optional completeness.
       We review a trial court’s decision to admit or exclude evidence under an abuse of discretion
standard. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006). An appellate court will not
reverse a trial court’s ruling unless that ruling falls outside the zone of reasonable disagreement.
Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). Error in the admission of evidence is
nonconstitutional error and is, therefore, subject to a harm analysis under Rule 44.2(b) of the Texas
Rules of Appellate Procedure. TEX . R. APP . P. 44.2(b); Potier v. State, 68 S.W.3d 657, 666 (Tex.
Crim. App. 2002). An appellant must show that the trial court’s ruling was in error and that the error
affected his substantial rights. Rule 44.2(b). Substantial rights are not affected by the erroneous
admission of evidence “if the appellate court, after examining the record as a whole, has fair
assurance that the error did not influence the jury, or had but a slight effect.” Motilla v. State, 78
S.W.3d 352, 355 (Tex. Crim. App. 2002).
       When Delapaz was arrested, he was interviewed by Detective Ricky Smith. The interview
was recorded and admitted into evidence. Delapaz testified, and during his cross-examination, the
State asked him about this interview:
        Q.      Okay. And then later on in that video, you -- you decided -- or -- in that
                interview, you decided to say, “No, no, no, I touched her.” You say that; is
                that right?
        A.      Yes.

        Q.      And at that time, your next statement was, “I only touched her breasts”; is
                that correct?


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       A.      Yes, sir.

       Q.      Okay. Was that true?

       A.      Yes, because I didn’t want to put her through it again before.

       Q.      You didn’t want to put her through what again?

       A.      All this.

       Q.      The trial process?

       A.      All this.

       Q.      So you were lying for her cause at that time?

       A.      I didn’t want to put her through -- through it again, because she been through
               it before. I didn’t want --

When N.D. was five or six years old, she was assaulted by another relative. Before redirect
examination, Delapaz’s counsel asked if he could clear up that Delapaz had never been previously
charged with touching his daughter. The trial court allowed this, but nothing further.
       During the punishment phase of trial, the State introduced evidence of the negative effect
Delapaz’s assault had on N.D., including three attempted suicides, lost friends, and weight gain.
Delapaz asked the trial court for leave to question N.D. about the prior assault to show that she was
reacting to multiple assaults, and not just Delapaz’s sexual assault. The trial court denied Delapaz’s
request, and a bill of review was made.
       Texas Rules of Evidence 412 excludes all evidence in a criminal case pertaining to the
victim’s sexual history save for five exceptions: (1) the evidence necessary to rebut or explain
scientific or medical evidence by the state; (2) the evidence of past sexual behavior with the accused
offered to show consent; (3) the evidence that relates to motive or bias of the victim; (4) the evidence
admissible under TEX . R. EVID . 609; or (5) the evidence that is constitutionally required to be
admitted. TEX . R. EVID . 412. Even if the evidence falls within an exception, the trial court must
determine if its probative value outweighs the danger of unfair prejudice. Hood v. State, 944 S.W.2d
743, 746 (Tex. App.—Amarillo 1997, no pet.).


                                                   3
       Delapaz argues that Rule 412 does not exclude evidence of the prior assault and notes that
courts have allowed testimony that a victim previously accused someone else of committing the
charged act. See Kesterson v. State, 997 S.W.2d 290, 295-96 (Tex. App.—Dallas 1999, no pet).
In that case, however, the evidence was admissible because it fell within Rule 412’s exception for
constitutionally required evidence. The Dallas court found that the evidence was admissible under
the confrontation clause. N.D.’s prior assault does not fit into any of the rule’s exceptions. The prior
assault would not rebut any scientific or medical evidence, consent was a non-issue: it did not
provide a motive or bias for N.D., it was irrelevant under Rule 609, and no constitutional provision
requires its admission.
       Delapaz next argues that, if Rule 412 applies, then the testimony was admissible under the
rule of optional completeness. TEX. R. EVID. 107 permits the introduction of previously inadmissible
evidence when that evidence is necessary to fully explain a matter that has been raised by the adverse
party. This rule is limited to instances where a party introduces partial evidence of an act,
declaration, conversation, writing, or recorded statement. The rule was adopted to prevent evidence
from being taken out of context and misleading the jury. Mendiola v. State, 61 S.W.3d 541, 545
(Tex. App.—San Antonio 2001, no pet.).
       Rule 107 is inapplicable in this case because a prior act, conversation, declaration, or written
or recorded statement was not at issue. Furthermore, the State did not “open the door” because
Delapaz’s statement that he did not want to put N.D. through this again was volunteered and was
nonresponsive to the State’s question. The trial court correctly let Delapaz’s attorney clarify any
confusion the statement may have had on the jury by allowing him to testify that he had never been
previously charged with assaulting his daughter, but it was not required to allow a broader inquiry.
       Moreover, there is a certain disassociation between Delapaz’s argument and the intent of the
rule. Delapaz’s statement that he did not want to put his daughter through this again was made
during the guilt/innocence phase of trial. The testimony that he wanted to introduce was offered
during the punishment phase. That testimony would not have corrected any potentially misleading
impression created during the punishment phase but would have been offered in direct rebuttal of
N.D.’s impact testimony. Cf. Mendiola, 61 S.W.3d at 545 (Rule 107’s purpose is to “correct any
potentially misleading impression created when only a portion of evidence is introduced.”).


                                                   4
       The trial court was not confronted with and, therefore, we need not address to what extent
N.D.’s punishment phase testimony opened the door to other forms of rebuttal testimony, such as
evidence that the problems she attributed to her father’s assault were pre-existing conditions. Our
holding is limited to the proposition that the trial court did not abuse its discretion by finding that
Delapaz could not ask N.D. about her prior assault.
       Even if we are in error, Delapaz has shown no harm. He made a bill outside the jury’s
presence and asked N.D. the following questions about her prior assault:
       Q.      Now -- and -- and you said it was all the result of this episode. Did the other
               -- did the other thing that happened to you eight or nine years ago have any
               effect on you along with this right here?

       A.      No.

       Q.      You don’t have any problems with it at this time?

       A.      I don’t think about it no more.

       Q.      Okay. Were you thinking about it when you took these pills and cut yourself
               and took the pills again?

       A.      No.

       Q.      Just thinking about this instance?

       A.      Yes.

This would not have rebutted N.D.’s punishment phase testimony. Delapaz’s issue is overruled.
                                             Conclusion
       The judgment of the trial court is affirmed.




                                                       RICK STRANGE
                                                       JUSTICE
September 24, 2009
Publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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