Opinion
No. 05-14-00787-CR
03-10-2016
ARMANDO OVIEDO NINO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 282nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1355053-S
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Bridges
A jury convicted appellant Armando Oviedo Nino of continuous sexual abuse of a child younger than fourteen years of age and sentenced him to forty-five years' imprisonment. In a single issue, Nino argues the trial court abused its discretion by refusing defense counsel's attempt to offer additional testimony to rebut evidence elicited by the State. We affirm the trial court's judgment.
Background
D.R., the complainant, was two-years-old when her mother, Maria, began living with Nino as his common-law wife. D.R. testified she was in kindergarten the first time Nino touched her inappropriately. She woke early one morning and Nino was laying on top of her with his legs wrapped around her legs. D.R. testified Nino touched her private part with his hand almost daily from the time she was in kindergarten until fifth grade. She also described a few instances when Nino tried to get her to do sexual acts to him.
On April 12, 2013, D.R. met with some women from her church to discuss her behavior issues at school. She was thirteen-years-old at that time. D.R. broke down crying and eventually wrote, "When I was little my dad he touched many times inappropriate so now eve[y] time I'm with him alone I'm scared he might do it again. I still remember one morning I woke up and he was on top of me." Maria did not see the note that day, but learned of the abuse the next day at a family meeting called by women from the church. The women met again the following Tuesday and then contacted the police. Nino admitted he could have left for Mexico, but instead turned himself into authorities shortly thereafter.
Detective Lisette Rivera worked as lead detective. She interviewed Nino in Spanish. She testified Nino appeared to be sorry during the interview, but he minimized his actions from the very beginning. However, he eventually admitted to touching D.R.'s vagina with his hand, mouth, and penis.
D.R. later gave multiple disclosures of abuse to a forensic interviewer at the Dallas Children's Advocacy Center. D.R. provided sensory details and also disclosed that Nino had showed her pornography and provided her with alcohol at an early age.
Nino testified in his defense and denied all allegations. He also told the jury about one time when D.R. followed him to his truck and pulled down her bra. He said he immediately drove off but never told anyone about the incident until trial.
The jury convicted him and sentenced him to forty-five years' confinement.
Discussion
In a single issue, Nino argues the trial court abused its discretion by denying defense counsel's attempts to rebut evidence elicited by the State during his recross-examination. The State responds the trial court acted within its discretion in refusing additional testimony, and Nino was not harmed by the exclusion of further testimony.
During redirect examination, Nino testified, "She followed me where I had my truck parked." Defense counsel then asked him to "go ahead and tell us what that's all about. What happened?" Nino answered, "Well, I would - - I would try - - how do you call it? I would try to avoid that." Defense counsel did not follow up with any further questions about the incident. Rather, he changed his line of questioning to whether D.R. ever told anyone that Nino was abusing her.
On recross examination, the State asked, "Mr. Nino, you mentioned when [D.R.] would follow you to your truck. You would try to stay away from that. Why?" Nino responded, "Because I didn't want to have any type of contact with her." He then told the jury one time D.R. followed him to his truck and pulled down her bra. He admitted he did not tell anyone about this incident until that day at trial.
Defense counsel then tried to ask a few more questions, but the trial court refused. The trial court said, "No, you should have asked . . . each side gets two, okay? So you're done." During a bill of exception, defense counsel argued he wanted to ask Nino if he remembered telling him and the interpreter the bra story the day before he testified. Defense counsel also wanted to ask Nino, "[I]sn't it true that you just agree with people when you make your answers, even if it is - - even if it's - - it's not a correct position of things to you. In other words, what they say, he tends to agree with." The trial court reiterated, that except in rare situations, it allows each side two opportunities to ask questions.
Nino argues the trial court's "two and two" policy for questioning is arbitrary and deprived him a meaningful opportunity to defend himself, thereby violating his constitutional rights under the Sixth and Fourteenth Amendments. Nino contends he was harmed because he did not get to present part of his defensive theory—that he never actually admitted to any sexual abuse, but rather merely agreed with the statements made by Detective Rivera during his interview. He also claims he was denied the opportunity to rebut the State's assertion he made up the story about D.R.'s inappropriate sexual conduct towards him.
Texas Rule of Evidence 611 governs the mode and order of interrogation of witnesses and presentation of evidence. TEX. R. EVID. 611. The trial court has broad discretion in managing the course of trial generally, including the interrogation of witnesses, but its discretion is not limitless. See Dang v. State, 154 S.W.3d 616, 619 (Tex. Crim. App. 2005). Under rule 611, the scope of the trial court's discretion is limited (1) to those procedures effective for determining the truth; (2) to avoid time waste; and (2) to protect witnesses from undue embarrassment and harassment. TEX. R. EVID. 611. The trial court may not exercise its authority in such a manner as to deprive a defendant of a meaningful opportunity to present a complete defense. Packer v. State, 442 S.W.3d 375, 379 (Tex. App.—Dallas 2011, no pet.). A criminal defendant's constitutional right to a meaningful opportunity to present a complete defense is grounded in the Fourteenth Amendment's Due Process Clause and the Sixth Amendment's Compulsory Process and Confrontation Clauses. See U.S. CONST. amend. VI, XIV; see also Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).
On the record before us, we cannot conclude the trial court acted arbitrarily in denying defense counsel a third opportunity to question Nino. The record shows defense counsel asked Nino on redirect examination to tell the jury about the time D.R. followed him to the truck. After Nino said he "tried to avoid that," defense counsel did not ask any follow up questions about the incident. In fact, defense counsel moved on to another subject. As such, we cannot conclude the trial court abused its discretion by refusing further questioning when defense counsel had the opportunity but did not utilize it.
Even if we concluded the trial court erred, we are unpersuaded the exclusion of the testimony harmed Nino. The exclusion of evidence is constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting any defense or "significantly undermines fundamental elements of the accused's defense." Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). That a defendant was unable to present his case to the extent he desired is not prejudicial where he was not prevented from presenting the substance of his defense to the jury. Id. at 666; Atkinson v. State, 107 S.W.3d 856, 859 (Tex. App.—Dallas 2003, no pet.).
First, we are unpersuaded by Nino's contention that he was deprived the opportunity to put forth evidence showing his personality is to agree with what others suggest. Defense counsel cross-examined Detective Rivera about Nino's answers during her interview and specifically asked, "So you would lead him and he would - - he would kind of agree with you more than come out and actually saying here's what happened and here's what happened; would that be correct?" Detective Rivera answered no. The jury heard this testimony and read the transcript in which Nino confessed he touched D.R. inappropriately with his mouth, hands, and penis. The jury also had the opportunity to judge Nino's credibility and determine whether his personality was to agree with what others suggest when he testified in his own defense. Further, while we acknowledge closing arguments are not evidence, defense counsel argued during closing, without objection, that Nino "tends to agree with what you suggest, and if you go back and read the statement, he never does say, you know, I did this." See Brennan v. State, 334 S.W.3d 64, 74 (Tex. App.—Dallas 2009, no pet.).
We are likewise unpersuaded Nino was harmed because he did not have the opportunity to rebut the State's assertion he made up the story about D.R.'s inappropriate sexual conduct. Any questions Nino's counsel could have asked him regarding the alleged sexual encounter that happened when D.R. was older would not refute or explain away D.R.'s testimony Nino began assaulting her years earlier.
Further, even if Nino was denied the opportunity to present this defensive theory, which we do not concede, the record shows he thoroughly cross-examined D.R. and attempted to cast doubt on her allegations because there was at least a ten-day period of time in which D.R. stayed with women from the church, who could have contaminated her rendition of events. However, the jury chose to believe the State's evidence. Accordingly, the excluded questions did not "significantly undermine[] fundamental elements of the accused's defense." Potier, 68 S.W.3d at 665. That Nino was unable to present his case to the extent he desired was not prejudicial where, as here, he was not prevented from presenting the substance of his defense to the jury. Id. at 666. We overrule Nino's sole issue.
Conclusion
The judgment of the trial court is affirmed.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE Do Not Publish
TEX. R. APP. P. 47.
140787F.U05
JUDGMENT
On Appeal from the 282nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1355053-S.
Opinion delivered by Justice Bridges. Justices Lang-Miers and Schenck participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered March 10, 2016.