No. 05-07-00923-CR
Opinion issued January 15, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the Criminal District Court, Dallas County, Texas, Trial Court Cause No. F06-25763-H.
Before Chief Justice THOMAS and Justices MORRIS and FRANCIS.
Opinion By Justice MORRIS.
A jury convicted Martin Pintor of aggravated sexual assault of a child and sentenced him to five years' probation. He now complains in two issues that the trial court erred by limiting his questioning of certain State's witnesses. We affirm the trial court's judgment.
Factual Background
Appellant admitted in a written statement that he and the thirteen-year-old complainant had penis-to-vagina contact in a hotel room bathroom. He claimed there was "sex" with no penetration. He also claimed the girl had told him she was nineteen years old. The child complainant testified that she had pursued the twenty-eight-year-old appellant, telling him she was sixteen years old. The day they met, she lied to a friend's mother so that she could pursue appellant at a shopping mall movie theater. The next night, she snuck out of her house, contacted him by phone, and willingly went with him and his cousin to the hotel room. Approximately two days later she called him on the phone after she skipped school, pleading with him to pick her up and telling him she was pregnant. Appellant's account of how he met, picked up, and sexually assaulted the complainant matched the complainant's account in nearly all respects but her reported age and the penetration of her vagina with his penis. According to the girl's testimony, appellant's penis penetrated her vagina and some seminal fluid got on her legs. DNA testing of the girl's underwear confirmed the presence of seminal fluid but the fluid was not conclusively linked to appellant. Discussion
In his first issue, appellant complains the trial court violated his rights under the U.S. and Texas constitutions to confront the witnesses against him by precluding him from questioning the complainant about "prior false allegations of sexual abuse." He complains in particular that he was unable to question the complainant about a claim she had made to police about an non-consensual sexual encounter with a boy, which she later recanted and admitted was consensual on her part. And he complains he was unable to question the complainant about a claim she had made that her step-father had molested her, which she later contradicted by telling CPS staff she thought the molestation had been only a dream or had possibly been committed by her brother, rather than her step-father. Appellant contends the complainant's admissions on these matters were material to proving the complainant was not a credible witness. Rule 608(b) of the Texas Rules of Evidence provides that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting his 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." Lopez v. State, 18 S.W.3d 220, 223 (Tex.Crim.App. 2000) (quoting Tex. R. Evid. 608(d)). The Confrontation Clause of the U.S. Constitution, however, may occasionally require the admissibility of evidence that the rules of evidence would exclude. Id. at 225. We must therefore balance the probative value of the evidence appellant sought to introduce against the risk that the admission of the evidence might confuse the jury. See id. at 225-26. In this case, the evidence appellant sought to introduce was of negligible probative value because appellant, in his written statement, admitted to every element of the aggravated sexual assault offense but the complainant's age. See Tex. Penal Code Ann. § 22.021(a)(1)(B)(iii) (Vernon Supp. 2008). Moreover, the prejudicial effect of the evidence against the complainant could have been extreme, portraying the complainant as a troubled girl with more sexual sophistication than even the charged offense revealed. The trial court maintains considerable discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the issues, and the injection of cumulative or collateral evidence. Lopez, 18 S.W.3d at 222. Given the facts of appellant's case, we cannot conclude the trial court abused its discretion in denying appellant's request to cross-examine the complainant on these matters. We resolve appellant's first issue against him. In his second issue, appellant complains he was prohibited from eliciting testimony from a police officer that the complainant's reputation for truthfulness was poor, in violation of rule of evidence 608(a) and his right to confrontation. At a hearing on the admissibility of this testimony and the admissibility of testimony by the girl complainant about her previous allegations of sexual abuse, appellant did not object that the limitation on his questioning of the officer violated his confrontation rights. He contended only that "the rules of evidence do recognize that if someone has a propensity for lying that the jury should know about it." His objections based on his rights to cross-examine the witnesses against him were limited to the court's "precluding [appellant] from questioning [the complainant] on these false allegations." Accordingly, appellant failed to preserve his constitutional argument for appeal. See Tex. R. App. P. 33.1(a)(1); Deener v. State, 214 S.W.3d 522, 527 (Tex.App.-Dallas 2006, pet. ref'd) (right of confrontation must be preserved by a timely and specific objection at trial). In addition, to the extent appellant raised a rule 608(a) objection that was ruled upon by the trial court, any error by the trial court in prohibiting appellant from eliciting this testimony from the police officer under rule 608(a) was harmless. Non-constitutional errors in criminal cases that do not affect substantial rights are to be disregarded. See Tex. R. App. P. 44.2(b). A substantial right is affected if the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). We have already determined in appellant's case that evidence impugning the child complainant's credibility was of inconsequential probative value because appellant admitted to virtually every element of the offense. In addition, the descriptions of the sexual encounter given by appellant and the complainant matched in almost all respects. Furthermore, evidence at trial revealed that the complainant did not always tell the truth. The complainant admitted at trial she had lied to appellant about her age and about being pregnant. She also admitted she had lied to a friend's mother so that she could pursue appellant at a shopping mall. We conclude the exclusion of a statement by a police officer that the complainant's reputation for truth telling was poor could not have affected appellant's substantial rights. We resolve his second issue against him. We affirm the trial court's judgment.