Opinion
01-20-00763-CR
08-18-2022
JOSE ISIDRO FLORES MURILLO, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish. Tex.R.App.P. 47.2. (b).
On Appeal from the 178th District Court Harris County, Texas Trial Court Case No. 1664298.
Panel consists of Landau, Hightower, and Rivas-Molloy, Justices.
MEMORANDUM OPINION
Veronica Rivas-Molloy, Justice.
A jury convicted appellant Jose Isidro Flores Murillo of the first-degree felony offense of continuous sexual abuse of a child and assessed his punishment at confinement for life in the Texas Department of Criminal Justice, Institutional Division. In two points of error, Appellant contends the trial court abused its discretion when it (1) excluded evidence of the complainant's father's suicide and (2) granted the State's motion in limine. We affirm.
Background
In 2004, M.R. ("Mary"), the complainant, and her mother N.C. ("Mother") began living with Mary's maternal grandmother F.M. ("Francis"). In 2009, when Mary was six years old, she and Mother moved into an apartment with Francis, Francis' boyfriend Jose Isidro Flores Murillo ("Appellant), and their two young sons.
We use pseudonyms to protect the identity of the complainant and parties in this case. See Tex. R. App. P. 9.10(a)(3); see also Gutierrez v. State, No. 01-19-00718-CR, 2021 WL 2931358, at *1 n.1 (Tex. App.-Houston [1st Dist.] July 13, 2021, pet. ref'd) (mem. op., not designated for publication).
Appellant watched Mary and his sons while Mother and Francis were at work. On weekends, when Mary's mother and grandmother were not home, Appellant would instruct his sons to go watch a movie in another room. Mary testified that Appellant would then go into the living room, pick her up, and place her on his lap. Mary testified that once, when she was six years old, Appellant pulled down her pajamas and inserted his fingers into her vagina. Mary testified that later, her vagina hurt when she urinated. On another occasion, while Mary was sleeping with Appellant and her grandmother in their bed, Appellant woke Mary up, showed her his penis, and put Mary's fingers on it. Mary testified that Appellant's sexual abuse of her continued for two years and stopped when Appellant left to Honduras. When Mary told her grandmother about the abuse, her grandmother began crying. Mary felt bad so she told her grandmother nothing had happened. Mary testified her grandmother did not believe her. Mary and her grandmother no longer speak.
After Appellant returned from Honduras to the United States in 2013 or 2014, Mary told Mother that Appellant had touched her private parts. When Mary's father, L.R. ("Father"), found out, he took Mary to the police station to report the abuse.
In January 2016, Officer Jennifer Simpson Bailey ("Officer Bailey") of the Houston Police Department interviewed Mary and took her statement. She testified Mary's father brought Mary to the station to report she had been sexually abused. Mary told Officer Bailey that Appellant babysat her when her mother and grandmother were at work. Mary stated that when Appellant's sons would leave to go to another room, Appellant would take Mary and sit her on his lap and insert his fingers into her vagina. Mary told Officer Bailey that Appellant inserted his fingers in her vagina many times and each instance lasted twenty minutes. Mary stated she experienced pain when she went to the restroom. Mary told Officer Bailey that she was between six and eight years old when the abuse occurred. She also stated Appellant told her not to tell her grandmother about the abuse or he would hurt her grandmother. Mary told Officer Bailey the abuse stopped when Appellant left to Honduras. When Mary told her grandmother about the abuse, her grandmother became very upset. Officer Bailey testified that Mary "backtracked her story" because she did not want to hurt her grandmother.
Xochitl Carias ("Carias"), a forensic interviewer with the Children's Assessment Center, interviewed Mary in July 2017. Mary told Carias that Appellant began sexually abusing her several times a week when she was six years old and that the abuse lasted two years. Mary stated that Appellant asked her to touch his penis several times, and, when she refused, Appellant grabbed her hand and forcibly made her touch his penis. Mary told Carias that Appellant told her not to tell anyone about the abuse because nobody would believe her.
Appellant was charged with continuous sexual abuse of a child. He pleaded not guilty, and the case was set for trial. One month before trial commenced in October 2020, Mary's father committed suicide.2 The State filed a motion in limine to prevent Appellant's defense counsel from eliciting testimony in front of the jury suggesting Father was a potential alternative perpetrator without first approaching the trial judge.
The trial court granted the State's motion and the case proceeded to trial.
While Appellant's counsel was cross-examining Mary's mother, he asked her about the timing and manner of Father's death. The State objected. The State argued Father's suicide was irrelevant and that defense counsel's questioning violated the State's motion in limine. When the trial court asked Appellant's counsel why Father's manner of death was relevant, the following exchange took place:
Defense Counsel: Judge, her family is completely relevant. Her-this is the father of the child, the complaining witness' father. There's no reason why she shouldn't be able to answer the question. It's not prejudicial here. I haven't asked why he committed that act. That's not what I'm getting at.
The Court: My specific question of you right now is: Why is how a person died relevant? Why is how a person died in 2020 relevant to an indictment that alleges an act that occurred between June 1st of 2009 through June 1st of 2011? That's my question.
Defense Counsel: Judge, the witness already indicated the father is the one that took her to the police station to report the incident. The person in question committed suicide two days before the trial date. It's not a matter that we're not going to bring up at all. He committed suicide two days before the previous setting, before he understood that the State was going to reset-
The Court: I need you to whisper.
Defense Counsel: You understand the circumstances, Judge. He committed suicide two days prior to what was originally the trial date.
The Court: Okay.
Defense Counsel: It's completely relevant.
The Court: State, response?
Prosecutor: The fact that her father committed suicide two days before the previous trial setting is not relevant: A, to the issue at trial today, and the fact we're in trial now. Also, counsel, as in response to the motions in limine, already agreed that they weren't going to go into the suicide and now to try to explain why it's relevant. And that's in direct
violation to what he already agreed to and not relevant, and in violation of the motions in limine, which we already agreed to this morning.
Defense Counsel: Your Honor-
The Court: Just a minute. I'll give you plenty of opportunity to respond. How did he commit suicide?
Prosecutor: It was a gunshot.
The Court: Was there a note?
Prosecutor: No.
The Court: Is there any mention of mental illness?
Prosecutor: Not that we're aware of. He has a history of alcohol, but no mental illness.
The Court: Was there any investigation on this individual?
Prosecutor: No, Judge.
The Court: Was there any-was there any police investigation on the-well, there had to have been on the suicide.
Prosecutor: Correct.
The Court: Was that turned over to Defense?
Prosecutor: It's still pending. It's still happening. They're still investigating it.
The Court: Are there any allegations or any allegations of sexual abuse or physical abuse involving this complainant or any family member with this individual who is now deceased?
Prosecutor: There is a prior allegation that the father had assaulted the mother, who is on the witness stand, but not the complainant at all; no.
The Court: And when you say "assaulted," what do you mean?
Prosecutor: Back in-I believe it was in 2-he was never charged, so there was no formal investigation or anything like that. Witness states there was a domestic violence incident, but never charged and no investigation.
The Court: What year was that to have alleged to have occurred?
Prosecutor: Around the same time all were living in the house, so around 2009 and 2011.
The Court: And were they noticed of that?
Prosecutor: Yes, in the offense report.
The Court: So is there any non-sexual assault allegations or anything that either side noticed about-that Defense noticed about-
Defense Counsel: Not that I'm particularly aware of. However, just to reiterate, we only agreed in our motion that we wouldn't bring it to establish third-party guilt.
The Court: Just so you know, I ruled; not you. The Court ruled that it was not to be brought up. Just so you know, that's the Court's motion.
Defense Counsel: I was just indicating that we agreed mutually. It was not brought up to incriminate a third party, Judge, and that's not the purpose of this.
The Court: I'll hold an independent hearing if necessary to explore this issue further. But as to now involving what has been brought up with this witness now, this issue is not relevant, so this State's objection is sustained. If you would like to have a hearing outside the presence of the jury to establish relevancy, absolutely, we can do that. But as to what you brought up now, just asking in 2020 why this person died, there is no relevancy. And I find the prejudicial far outweighs the probative. And I also find it would confuse the jury, 404(b).
Following this exchange, Appellant's counsel lodged no further objections and he did not request a hearing outside the presence of the jury.
After both sides rested, the jury found Appellant guilty of the charged offense and assessed his punishment at life imprisonment. This appeal followed.
Exclusion of Evidence
In his first point of error, Appellant contends the trial court abused its discretion in excluding evidence of Father's suicide.
A. Standard of Review and Applicable Law
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Henley v. State, 493 S.W.3d 77, 82-83 (Tex. Crim. App. 2016). A trial court abuses its discretion if its ruling falls outside the zone of reasonable disagreement or if it acts without reference to guiding rules or principles. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019); Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
Texas Rule of Evidence 401 states that "[e]vidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action." Tex. R. Evid. 401; see Shuffield v. State, 189 S.W.3d 782, 786-87 (Tex. Crim. App. 2006). Texas Rule of Evidence 403 provides that a trial court may exclude otherwise relevant evidence "if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence." Tex. R. Evid. 403. When conducting a Rule 403 analysis, the trial court must balance (1) the inherent probative force of the proffered item of evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume a significant amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
B. Analysis
Appellant contends the trial court abused its discretion in excluding evidence of Father's suicide because the evidence is relevant and its probative value outweighed any danger of unfair prejudice. Appellant argues the trial court assumed erroneously that his counsel's questioning was intended to elicit alternative perpetrator evidence. He asserts that, to the contrary, he intended to use evidence of Father's suicide to show the jurors the potential impact of the evidence on Mary's mental state and how it may have impacted her memory. He also argues evidence of Father's suicide was relevant and probative "to the potential that he may have been hiding something regarding the true nature of the facts."
To preserve error on the exclusion of evidence, the complaining party must articulate to the trial court why the evidence should be admitted. The complaining part must also make an offer of proof describing the substance of the excluded evidence unless its substance is apparent from the context. See Golliday v. State, 560 S.W.3d 664, 668-70 (Tex. Crim. App. 2018). A party fails to preserve error when the contention he urges on appeal does not align with the specific complaint he made in the trial court. See Edwards v. State, 497 S.W.3d 147, 162 (Tex. App.- Houston [1st Dist.] 2016, pet. ref'd) (citing Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009)); see also Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009).
At trial, Appellant argued that evidence of Father's suicide was relevant because he was the complainant's father, he took her to the police station to report the abuse, and he committed suicide shortly before the September 2020 trial setting:
Defense Counsel: Judge, her family is completely relevant. Her-this is the father of the child, the complaining witness' father. There's no reason why she shouldn't be able to answer the question. It's not prejudicial here. I haven't asked why he committed that act. That's not what I'm getting at.
The Court: My specific question of you right now is: Why is how a person died relevant? Why is how a person died in 2020 relevant to an indictment that alleges an act that occurred between June 1st of 2009 through June 1st of 2011? That's my question.
Defense Counsel: Judge, the witness already indicated the father is the one that took her to the police station to report the incident. The person in question committed suicide two days before the trial date. It's not a matter that we're not going to bring up at all. He committed suicide two days before the previous setting, before he understood that the State was going to reset-
The Court: I need you to whisper.
Defense Counsel: You understand the circumstances, Judge. He committed suicide two days prior to what was originally the trial date.
The Court: Okay.
Defense Counsel: It's completely relevant.
Appellant did not argue, as he does on appeal, that the evidence was relevant to show the effect Father's suicide had on Mary's mental state or her memory. He thus waived the issue. See Lovill, 319 S.W.3d at 692-93 (concluding error not preserved when contention defendant urged on appeal did not align with specific complaint made in trial court).
Even assuming Appellant preserved error and the excluded evidence of Father's suicide had some minimal relevancy, Appellant has not established the trial court committed error in excluding the evidence under Rule 403. The record shows Appellant was not merely trying to introduce testimony about the timing of Father's death; he was seeking to elicit testimony about the manner of his death-suicide. A distinct possibility existed that introduction of such evidence would have invited the jury to speculate that Father committed suicide just before trial because he was the perpetrator of the offense. As the Court of Criminal Appeals has explained, "[i]n weighing probative value against Rule 403 counterfactors, courts must be sensitive to the special problems presented by 'alternative perpetrator' evidence." Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App. 2002). "Although a defendant obviously has a right to attempt to establish his innocence by showing that someone else committed the crime, he still must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged 'alternative perpetrator.'" Id. Appellant did not meet that burden.
No evidence was presented at trial connecting Father to the commission of the charged offense. Instead, the evidence showed Mary consistently identified Appellant as the person who sexually abused her. And the only evidence relevant to Father was that he brought Mary to the police station to report the abuse and to the Children's Assessment Center for her forensic interview. The trial court also heard argument concerning allegations that Father had assaulted Mother in 2009 or 2011, and that no formal charges were ever filed. Such allegations are not evidence linking Father to the charged offense. The probative value of the proffered evidence was thus slight because of its highly speculative nature. See id. Weak, speculative evidence that another person may have committed the crime is inadmissible and poses a great threat of confusing the issues in a trial. See id. at 407 ("It is not sufficient for a defendant merely to offer up unsupported speculation that another person may have done the crime. Such speculative blaming intensifies the grave risk of jury confusion, and it invites the jury to render its findings based on emotion or prejudice.") (quoting United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir. 1998)). On this record, the trial court could have reasonably concluded the proffered evidence did not survive the balancing test under Rule 403.
The trial did not abuse its discretion by excluding evidence of Father's suicide. We overrule Appellant's first point of error.
Motion in Limine
In his second point of error, Appellant contends the trial court abused its discretion in granting the State's motion in limine for alternative perpetrator evidence because the motion was vague and did not explain the specific evidence the State sought to exclude. The motion in limine stated, in relevant part:
Assistant District Attorney, CASEY SMITH, in and for Harris County, Texas moves this court to instruct the Defendant, lawyers and witnesses for the defense in the above styled and numbered cause not to allude to, refer to, or in any way bring before the jury selected to try this case without first approaching the judge: 1. Any reference, speculation, elicited testimony, or allusion to Complainant's Father [L.R.] as a potential "alternate perpetrator."
A motion in limine "is a preliminary matter and normally preserves nothing for appellant review." Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008); see Griggs v. State, 213 S.W.3d 923, 926 n.1 (Tex. Crim. App. 2007) ("A motion in limine, whether granted or denied, preserves nothing for appellate review."); Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.-Austin 2000, pet. ref'd) ("It is axiomatic that motions in limine do not preserve error."). "A motion in limine is not a ruling that excludes evidence; rather, it merely requires the parties to approach the trial court for a definitive ruling before attempting to put on evidence within the scope of the motion in limine order." Thierry v. State, 288 S.W.3d 80, 86-87 (Tex. App.- Houston [1st Dist.] 2009, pet. ref'd). Because the trial court's ruling on the State's motion in limine was not a ruling on the merits, Appellant's complaint presents nothing for our review. We overrule Appellant's second point of error.
Conclusion
We affirm the trial court's judgment.