### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-17-00473- CR

Delfin o Torre s-Vasquez, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 331 ST JUDICI AL DISTRICT NO. D-1 -DC- 16- 9040 32, TH E H ONO RAB LE B OB P ERKI NS, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found appellant Delfino Torre s-Vasque z g uilty of continuous sexual abuse of

a y oung child for sexually abusin g his stepdaug hter, A.G., see Tex. Penal Code § 21.02(b), and assessed his punishment at conf inement for 30 y ear s in the Texas D epar tment of Criminal Justi ce,

see id. § 21.02(h). I n a single point of er ro r, ap p el l an t asser ts that the trial court’s exclusion of evidenc e denied him the ri g ht to prese nt a complete defe nse. Finding no violation of appellant’ s constitutional rights, we aff irm the trial cour

t’s judgme nt of conviction.

BACK GR OUND The evidenc e at trial ref

lected that appellant met and marrie d M.G., A.G.’s mother, when A.G. was a very y oung ch i l d

— three or four y ear s old. A.G.’s biologica l fathe r was not involved in her life in any way , and she considere d appellant her fa t her. The jury also hear d evidenc e that, from the ag e of three or four until A.G. was ten, appellant perpe trated various sexualacts ag ainst his stepdaug hter on numerous occa sions, including: touching her on her “che st,” both

over her clothing and under her clothing; rubbing her “vag ina” over her clothing; making her “vag ina

are a” touch his g enitals (over their clothing) when he made her straddle his lap and then “moved her

on his g enitals;” touching her “vag ina” inside her cl o th ing ; “stick[ing] his fing ers inside” her; forc ing her to touch an d “r u b ” his penis, both over his clothing and under his clothing; forc ing her to masturbate him until he ejaculated; perf orming oral sex on her; for cingher to pe rfor m oral sex on him, and attempting “ to put his penis ins ide of [her].” 1

The rec ord ref

lects that, prior to me e ti n g a p p e ll ant, M.G. dated a man named “Jaime,” and that she occa sionally left A.G. in his car e when she went to w ork. Multipl e times throughout 2 the course of trial, appellant soug ht to admit evidenc e of an alleg ed alternative perpe trator throug h evidenc e of a purported conver sation betwee n M.G. and appellant’ s sister, Maria Guada lupe Torre s. During this conver sation, which supposedly occur red at some point betwee n 2003 and 2009, M.G. told Torres that A.G . told her about sexual abuse that J aime alleg edly perpe trated a g ainst A.G. Appellant first soug ht to offe r evidenc e ab o u t this conver sation during

cross-e x amination of M.G. when he asked about her relationship with Torre s and conver sations that she had w ith her sister-in-la w when T orre s visited from Mexi co: Q. And y ou had confide nce in [ Torre s]. I mean, these wer e persona l conver sations betwee n the two of you that women have ?

Be cause the parties are familiar with the fac ts of the case and the evidenc e adduce d at trial, 1 we provide only a brief overvie w of the fac ts here and limit further rec itation of fac ts in this opinion to those rele vant to the point of err or raised and those nece ssary to advise the parties of the Court’s decision and the basic re asons for it. SeeTex. R. App. P . 47.1, 47.4. M.G. testified that she did not re member Jaime’s last name. 2 2A. Yes.

Q. And y o u confide d in her, [M.G.] , that when -- at a cer tain point this conver sation came out that y ou told her that i t wasn’t a lway s that easy , that y ou had some diff

icult times? A. Yes. Q. Okay . And that’s why y ou wer e so protec tive of [A.G.]? A. Yes. Q. And one of the things that y ou share d with her from y our hear t was that y ou told he r that y our daug hter had told you that she had to suck Jaime’s penis? A. Idon’t reme mber having sa id that to her. Q. And y ou also told her that y ou would tell that li t t l e gi rl n o t to say that, that y ou don’t say

things like that. Do you reme mber that? A. Idon’t reme mber that. Q. And that part of the rea son that y ou had a problem was that you didn’t have any one else to leave y

our child with at that time? A. Ididn’t understand that question very well. Q. Yea

h

. W h en y ou would g o to work at y our cleaning -- at the cleaner s, y ou didn’t have -- sometimes y ou didn’t have someone to watch over her, so y ou relied on Jaime? A. Yes. Q. Ok ay . And one of the things that y ou told her about was that y ou we re bothere d that J aime would bathe [A.G.] when she was a round 3? A. Yes. Q. And that J aime would bathe her -

-

3At t hat point, the State objected. I n the ensuing discussion at the bench, the State o b j ec t ed t o evidenc e of an alternative perpe trator, arguing that it was not rele vant. Be cause the indicted char g es ag ainst appellant related to acts of sexual abuse alleg ed to have happene d y ear s afte r M.G.’s relationship wit h J aime had e nded, the tria l court sustained the State’ s releva ncy objection. Appellant next sought to introduce the evidenc e, indi rec tly , when c ross-examining the State’s child-a

buse expert about fa lse memories:
Q. Okay

. Now, that event that just -- example I have g iven y ou, wher e someone walks in and assumes something, assumes they thought they saw something, y ou know, that become s kind of the seed or the g enesis, or it could be, of this false me mory , isn’t it? A. I t can. Q. Okay

. Now, let me add something else to the equation. What if, for example, a child has been abused previo u sly , like at the ag e of 3, by somebody

else?
The State objec ted, complaining t hat appellant was a g ain improperly attempting to of

fer evidenc e of an alternate perpe trator. During the ensuing discussion outside the prese nce of the jury , the trial 3

court noted that, in her testimony , A.G. expli citly denied being sexually abused by anyone other than appellant. The court also indicated that “eve n if it happene d when she was 3 and it did happen with

The State maintained that appellant’ s evidenc e of J aime as an alleg ed alterna tive 3 perpe trator failed t o satisfy the s tandard fo r admissibili ty of alternative-pe rpetrator evidenc e. For alternative-per

petrator evidenc e to be admissible at trial, the evidenc e must be both re l ev an t and connec t the alleg ed alternative perpe trator to the char g ed offe nse. See W iley v. State , 74 S.W .3d 399, 4 0 6 (Tex. Crim. App. 2002) (re quiring defe ndant to demonstrate that “his proff ere d evidence reg arding the al l eged alternative perpe trator is sufficie nt, on its own or in combination with other evidenc e in the rec ord, to show a nexus betwee n the crime ch ar ged an d the alleg ed ‘alter native per petrator’”)

. 4anothe r p er s o n , it’s not rele vant to [appellant’s] particula r indictment [t hat] starts in 2007.” Appellant then explained that “[his] defe nse is this is a source confusion on this Complainant, that she i s blending her memories from 2002 with, y ou know -- with this case here -- it was that guy .” The trial court sustained the State’s objection. Appellant objected to the court’s ruling , complaining that it was “in violation of, what is it , 4th, 5th, 6th, 8th, and 14th Amendment to the C onstitut ion, and also the same provisions in the Texas Const itution. I t denies my rig ht to a fair tr ial.” Next, during the defe nse case -in-chie f, appellant rec alled M.G. Outside the prese nce of the jury , appellant questioned her about the alleg ed conver sation she had with Torre s in which she purportedly

told her about A.G .’s disclosure of J aime’s a lleg ed sexual abuse:
Q. [M.G.] , my other question is: Do y ou reme mber having a conver sation with Guada lupe Torres where y ou discussed [ A.G.] and when y ou wer e a s i n gl e pare nt? Do y ou reme mber? A. Idon’t reme mber. Q. Do y ou reme mber any conver sation with Guada lupe Torre s -- and this would have been betwee n 2003 and 2009 -- in which y ou told Guada lupe Torre s that [A.G.] had told y ou that a man named -- y our boy fr i en d at the time, a man name Jaime, had made her suc k on his penis? A. Idon’t rec all.

The rec ord indicated that appellant wanted to of fer this testimony from M.G. in or der to be able to offe r Torre s’s testimony about the alleg ed conv er s ation. Appellant then explained his rea son for offe ring Torre s’s testimony : “it is our defe nse that this child has been abused and that s h e was abused by someone, this man named J aime, sometime back in 2002, may be ear lier. And she’s g ot memories of oral sex.” Appellant maintained t h at t h e evidenc e about the alleg ed

5conver s ati on—wher e M.G. rec ounted her daug hter telling her that J aime made her suck on his

penis—supported their “sourc e attribution err or” defe nse. I n response , the State maintained that the evidenc e failed to meet the criter ia for introduc ing e vidence of an a lternative perpetr ator as it was

mere speculation that another pe r s o n h a d s e xually abused A.G., particula rly since A.G. had expli citly denied in her testimony that anyone else had sexually abused her. The trial court ag ain sustained the State’s objection. Appellant objected to the court’ s ru l i n g as “a violation of [hi s] United States Constit ution rig hts, the 5th, 6th, 8th, and the 14th Amendment to the Constitution and any thing else that fits the Texas Constit ution, as well.” After appellant’ s proff er of M.G.’s testimony , and the trial court’s ruling , appellant briefly questioned M.G. about topics not related to the alleg ed conver sation. After M.G. testified, the c ourt proce eding s rec essed f or the we ekend. When the trial resumed on Monday , appellant ag ain attempted to offe r the evidenc e

o f an alleg ed alterna

tive perpe trator when he soug ht to introduce Torre s’s testimony about her

conver sation with M.G. He elicited the following during the proff er of Torre s’s testimony : Q. Did y ou h av e a conver sation with [M.G.] wher e she told y ou that a man named Jaime had done somethingto her da ug hter? A. Yes.

. . . Q. Okay . So go a

head. So what -- whe re did the c onversation go ne x t? A. And so she was working , and that she had to leave the littl e g irl with the man that she wa s living with. Q. Did she g ive a na

me of a man? A. Well, I don’t reme mber well. I t c ould be J aime, but I don’t reme mber well.

6Q. Okay

. And did she tell y ou any thing about that -- that she noticed that struck y ou bad or not we ll? Did she say any thing about that that struck y ou and -- that struck y ou? A. L ike what the ma

n was doingwith the child? Q. Yes.

. . . [ ex ch an ge d i s cussing M.G. telling Torre s that the man was b at h i n g A. G. when takingcar e of he r while M.G. wa s at work] Q. And so what did [M.G.] tell y ou that the child would tell her? A. Well, this bring s me shame, but I ’ll say it: that the man, he was bathing her, this man, and he was kissing her part, sucking her p ar t , the man to the y oung g irl.

On quest i o n i n g by the prosec utor, Torre s confirme d that she had no persona l knowledg e of the alleg ed sexual abuse.

At the end of the proff

er of Torre s’s testimony , appellant argued that he was entitled
to offe r the evidenc e about the alleg ed conver sation beca use “[the] defe nse is that there is some fabr ication of alleg ations, but also that there is some source confusion g oing on” and he had a “5th Amendment, 6th Amendment, 8th Amendment, and 14th Amendment, the rig ht to do this, that [he had] a rig ht to prese nt a defe nse under the U.S. Constit ution.” He fu rt h er ar gued that the testimony should be allowed beca use “it attack[ed] the cre dibilit y of [M.G.] ” beca use she stated that she did not rec all telling Tor res that Jaime “had c ommitt ed any sexual abuse on her

daug hter.” At that point, the trial court noted the “hea rsay nature ” of the proff

ere d testimony and asked appellant, “How is it that y ou are g etting around that? ” The co u rt observe d, “I t’s an out-of-c ourt statement, it’s c lear ly made not unde r oath -- and y ou are clea rly trying to introduce it

7to pro v e t h e t ru t h of the matter asser ted there in.” The court specific ally asked appellant what exception to the hear say ru l e ap pellant was rely ing on for the admission of the out-of-c ourt
statements. I n response , appellant indicated t hat “it’s proper impeachme nt of the witness.” After further discussion, the State also complained that the evidenc e was more prejudicia l than probative. Ultimately , the trial cour

t sustaine d the State’s objection “on the basis of e very thing the State sa id and other things” and excluded Torr es’s testimony

.

DISCUSSIO N I n his sole point of err o r, ap p el l ant argues that the trial court’s ruling excluding “evide nce of a third party perpe trator as it relates to source attribution err or in memory” denied him his constituti onal rig ht to present a c omplete def ense. We revie w a trial court’s decision to admit or exclu d e ev i d en ce for an abuse of discretion. Henley v. State , 493 S.W .3d 77, 82–83 (Tex. Crim. App. 2016); Sandoval v. State , 409 S.W .3 d 2 5 9 , 2 9 7 (Tex. App.—Austin 2013, no pet.). This standard applies even when the acc used complains, as appellant does here , that the ex cl u s ion of evidenc e denied him his constitutional rig ht to a meaning ful opportunity to prese nt a d ef ense. See Miller v. State , 36 S.W .3d 503, 507 (Tex. Crim. App. 2001). An abuse of discretion does not occur unless the trial
court acts “ar

bitrarily or unre asonably” or “ without refe renc e to any g uiding rules and principles.” State v. Hi l l , 4 9 9 S.W .3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery v. State , 810 S.W .2d 372, 380 (Tex. Crim. App. 1990)). Fur ther, we may not reve rse the trial court’s ruling

u n l ess the deter

mination “fa lls outside the zone of rea sonable disag ree ment.” Johnson v. State , 490 S.W .3d 895, 908 (Tex. Crim. App. 2016); see Henley , 493 S.W .3d at 83 (“B efor e a revie wing

8court may reve rse the trial court’s decision, ‘it must find the trial court’s ruling was so clea rly wrong

as to lie outside the zone within which rea sonable people might disag ree .’” (quoting Taylor v. State , 268 S.W .3d 571, 579 (Tex. Crim. App. 2008)))

. An evidentiar y ruling will be upheld if it is corr ect

on any theory of law applicable to th e ca s e. Henley , 493 S.W .3d at 93; Sandoval , 409 S.W .3d at 297. The evidenc e of a pot en t i al alternative perpe trator that appellant relied on was his sister’s testimony about the alleg ed conver sation that she had with M.G. in which M.G. purportedly told her that A.G. had ostensibly disclosed sexual abuse by J aime. Appellant offe red evidenc e about this conver sation for the purpose o f p ro v i n g p ri or sexual abuse of A.G. by another perpe trator in support of his “sourc e confusion” defe nse, which maintained that A.G. was confusing her memories

conce rning sexual abuse and mistakenly attri b u t i n g t h e acts of abuse to appellant. The trial court

o b serve d that appellant’ s evidenc e was “an out-of-c ourt statement” that appellant was “cle arly trying to introduce it to prove the tr uth of the matter a sserted the rein.” Hea rsay is a statement, other than one made by the decla rant while testifying at a trial,

o ff er ed i n evidenc e to prove the truth of the matter asser ted. Tex. R. Evid. 801(d). Hea rsay i s g ener ally inadmissible ex cept a s provided by the rules of

evidenc e or statute. T ex. R . Evid. 802. Her e, the excluded evidenc e was about an out-of-c ourt statement that M.G. made to Torre s about an out-of-c o u rt statement t hat A.G. made to M.G. There fore , it is a st atement about

a statement offe red for the truth of the matter asser ted, or hear say -within-hea rsay . This evidenc e was admissible only so long as eac h lay er of hear say independe ntly satisfied some exception to the hear say rule. See Tex. R. Evid. 805 (“H ear say within h ea rs ay i s n o t excluded by the rule ag ainst

9hear say if eac h part of the combined statements confor ms with an exception to the rule.” ); Sanchez

v. State , 354 S.W .3d 476, 485–86 (Tex. Crim. App. 2011) (“When hear say contains hear say , the Rules of Evidence require that eac h part of the combined stateme nts be within a n exception to the hear say rule.” ). Ap p el l an t s o u g ht to offe r evidenc e about (1) M.G.’s statement to his sister and (2) A.G.’s sta t ement to M.G. Thus, in order to be admissible, the evidenc e, including Torre s’s testimony , must be justified on two levels: there must be a hear say exception that applies to A.G.’s statement to M.G. and a

hear say exception that applies to M.G.’s statement to Torr es. Possibl y , A.G.’s statement to her mother descr ibing alleg ed sex ual abuse by J aime

was admissible as an outcry statement. See Tex. Code Crim. Proc. art. 38.072. Howeve r, the rec ord 4 ref lects that the appellant failed to satisfy the statutory require men t s i n o rd er for A.G.’s hear say statement to be admissible as an o utcry statement throug h M.G. as an outcry witness. See 5 id. art. 38.072(b). Moreove r, even assuming that the first level of hear say (A.G.’ s statement to M.G.) confor ms with the outcry -statement exception, Torre s’s testimony was still inadmissible beca use the second le vel of he arsa

y (M.G.’s state ment to Torre s) does not conf orm to any

hear say exception.

Article 38.072 o f t h e Texas Code of C riminal Procedur e, the outcry statute, g overns the 4 admissibili ty

of ce rtain hear say evidenc e in spe cified crimes ag ainst a child y oung er tha n 14 y ear s old or a person with disabiliti es. See Tex. Code C ri m. Proc. art. 38.072. The statute allows testi m ony by the first adult in whom a child or disabled person confide s reg arding sexual or phy sical abuse. See id. ; Martinez v. State , 178 S.W .3d 806, 810–11 (Tex. Crim. App. 2005). The statement of the c hild or disabled per son to the adult is commonly known as the “ outcry ,” and the adult who testifies about the outcry is commonly known as the “outcr y witness.” Sanchez v. State , 354 S.W .3d 476, 484 (Tex. Crim. App. 2011). We note that appellant never questioned M.G. about the alleg ed statement that her daug hter 5 made to her disclosing J aime’s purported sexual abuse. I nstead, he only asked M.G. about the statement that she made to his sis ter a bout A.G.’s outcr

y statement. 10Wh en the trial court soug ht an applicable hear say exception from appellant, appellant

indicated that the evidenc e was offe red as “impeac hment” of M.G. beca use she testified that she did

n o t reme mber making the alleg ed statement (about A.G.’s statement to her) to appellant’ s sist er . Assuming without d eciding that Torre s’s testimony was an appropr iate way to attack M.G.’s

cre dibilit y due to her failure to rec ollect the conver sation wher e she alleg edly repor ted that A.G. had d i sclosed sexual abuse, such evidenc e was not admissible as substantive evidenc e to s u p p o rt 6

We observe that when the issue reg arding the admissibili ty of evidenc e conce rning M.G.’s 6 alleg ed conve rsation with Torre s first arose during cross-e x amination of M.G. in f ront of the jury , appellant’ s counsel asked M

. G. i f “o n e of the things that y ou share d with her (Torr es) from y our hear t was that y ou told her that y our daug hter had t o l d y ou that she had to suck J aime’s penis? ” L ikewise, in his proff

er of M.G.’s testimony , he aske d her if she

reme mber[ed] any conver sation with Guada lupe Torre s -- and this would have been betwee n 2003 and 2009 -- in which y ou told Guada lupe Torre s that [A.G.] had told y ou that a man named -- y our boy friend at the time, a man name J aime, had made her suck on his penis? Howeve r, during the subsequent proff er of Torre s’s testimony , appellant’ s counsel elicited testimony that M.G. told Torre s “the child” told her “that the man, he was bathing her, this man, and he wa s kissing her

part, sucking

her pa rt, the man to the young g irl.” Thus, M.G. was asked about a conver sation conce rning A.G.’s outcry about J aime making her “suck his penis,” which M.G. did not rec all, but Torre s’s testimony about the conver sation with M.G. ref lected that the conve rsation conc erne d A.G.’s outcr y about J aime “kissing” and “sucking her pa rt.” Appellant’s counsel acknow ledg ed the discrepa ncy in the acts of sexual abuse alleg ed ly disclosed in his argument during the proff er of Torre s’s testimony : We have g ot the witness on the alternative perp stuff, but I asked the wrong question. I went throug h my notes. The email I g ot was from back in Marc h. What my witness say s is that the -- she said -- her words wer e chupar

. But what she meant was chupar her vag ina, in othe r words, lick her vag ina, not suck his dick, which is what I asked the lady

. So I asked her the wrong question. I suspect that the lady will say the same answe r as, “I don’t reme mber saying that,” but to be fair, y ou know, it’s not a proper 11appellant’ s “sourc e confusion” defe nsive theory in that it did not constitute substantive evidenc e of

an alter native per petrator. I mpeac hment of a witness means adducing proof t h at s u ch witness is unworthy of belief or cre dit. W

illingham v. State , 897 S.W .2d 351, 358 (Tex. Crim. App. 1995); Ransom v. State , 789 S.W .2d 572, 587 (Tex

. C ri m. App. 1989); Brown v. State , 475 S.W .2d 938, 952 (Tex. Crim. App. 1971), overruled on other grounds by Bradford v. State , 608 S.W .2d 918 (Tex. Crim. App. 1980). Thus, impeachme nt is aimed at attacking the cre dibilit y of a witness. See Steven Goode, Oli n Gu y Wellborn I I I , & M. Michae l Sharlot, 1 Texas Practice Series: Guide to the Rules of Evidenc e § 607.1 (4th ed.). Testimony admitted only for impeachme nt purposes is without probative value and cannot be conside red a s substantive evidenc e. Key v . State , 492 S.W .2d 514, 516 (Tex. Crim. App. 1973); Cherb v. State , 472 S.W .2d 273, 279 (Tex. Crim. App. 1971); Thompson v. State , No. 12-11-00118- CR, 2012 W L1514776, at *3 (Te x . App.—Tyler Apr. 30, 2012, no pet.) (me m. op., not desig nated for publication); Adams v. State , 862 S.W .2d 139, 147 (Tex. App.—San Antonio 1993, pet. ref

’d); see W illiams v. State , 565 S.W .2d 63, 65 (Tex. Crim. App. 1978) (explaining that

ev i dence admitted for limit ed purpose may not be used for another purpose) ; Bocane gra v. State , 519 S.W .3d 190, 234 (Tex. App.—For t Worth 2017, no pet.) (re cog nizi ng that impeachme n t

impeachme nt [ by ] m e bec ause I asked the wrong , y ou know, par t. Although appellant’ s counsel assumed M.G.’s answe r conce rning a conver sation in which she told Torre s about A.G. telling her that J aime kissed and licked her part would be the same as her answe r conce rning a conver sation in which she told Torre s about A.G. telling her that J aime made her suck his penis, counsel did not rec all M.G. in order to establish that M.G. did not reme mber telling Torre s about that alleg ed outcr

y statement. 12evidenc e, whose only aim is to attack cre dibilit y of witness but otherwise has no probative value, “is

not substantive evidence sufficie nt to prove a material fa ct in a ca se”)

.

As impeachme nt evidenc e, which cannot be used as primary evidenc e and would be limit ed to the purpose for which it wa s admitted (attac king M.G.’s cre dibilit y ), Torre s’s testimony

was not substantive evidenc e supporting appellant’ s “sourc e confusion” defe nsive theory —that is,

even if admissible to impeach M.G., it would not ha ve been substantive evidenc e of an alterna tive perpe trator’ s sexual a

buse of A.G. such that it would support appellant’ s theory that an alterna tive

source for memories of sex ual abuse exis ted, t hat A.G. was confusing her memories, and that she was mistakenly

attributing the abuse to a ppellant. The United States Constit ution g uara ntees criminal defe ndants a meaning ful opport u n i ty to prese nt a complete defe nse. Holmes v. South Carolina , 547 U.S. 319, 324 (2006); Crane v. Kentucky , 476 U.S. 683, 689– 9 0 (1986); see also U.S. Const. amends. VI (compulsory proce ss and confr ontation of witnesses), XI V (due proce ss). Howeve r, a criminal defe ndant’s rig ht
to prese nt rele vant evidenc e is not absolute. See United States v. Scheffer , 523 U.S. 303, 308 (1998) (re cog nizi ng that “[a] def endant’ s rig ht to present re levant evide nce is not unlimited”). Instead, it is subject to rea sonable restric tions that acc ommodate other leg itimate interests in the criminal-tria l proce ss. Id. ; Mi ch i

g a n v. Lucas , 500 U.S. 145, 149 (1991); Rock v. Arkansas , 483 U.S. 44, 55 (1987); Chambers v. Mississippi , 410 U.S. 284, 295 (1973).

Her e, appellant’ s proff

ere d evidence was limit ed by the application of the hear say rule, see Tex. R. Evid. 801, 802, and the hear say -within-hea rsay rule, see Tex. R. Evid. 805—which both pr ohibit the admission of out-of-c ourt statements offe red to prove their truth unless a hear say

13exception applies. Appellant, a s the proponent of t he evidence, bore the burden of articula ting a n exception or exclusion under which Torre s’s testimony or evidenc e about the alleg ed conver sation would be proper ly admissible. See W hite v. State , 549 S.W .3d 146, 151–52 (Tex. Crim. App. 2018) (obser ving that proponent of evi d e nce g ener ally has burden of establishing admissibili ty of proff ere d evidenc e); Pierson v. State , 426 S.W .3d 763, 771 (Tex. Crim. App. 2014) (holding that appellant,

as proponent of evidenc e, failed to car ry burden to establish its admissibili ty , and there fore evidenc e

was inadmissible); see also Martinez v. State , 178 S.W .3d 806, 815 (Tex. Crim. App. 2005) (“The State, as the proponent of the [hearsay] evidenc e, had the burden of demonstrating the applicability of that exemption or exception.”); W hite , 549 S.W .3d at 160 (Ke ller, P.J ., concur ring ) (“[O]nce hear say is shown, the proponent bear s t h e burden of establishing an exemption or exception to the hear say rule.” ). Appellant offe red no su ch ex em p tion or exception; “impeac hment” is not a hear say exception. “[E] videntiary ruling s rar ely rise to the level of denying t h e fu n d amental constitutional rig hts to prese nt a meaning ful defe nse.” W illiams v. State , 273 S.W .3d 200, 232 (Tex. Crim. Ap p . 2 0 0 8 ) (quot ing Potier v. State , 68 S.W .3d 657, 663 (Tex. Crim. App. 2002)); accord W iley v. State , 74 S.W .3d 399, 405 (Tex. Crim. App. 2002 ). T h e C o u rt of Criminal Appea ls has explained that there are two distinct scena rios in which ruling s excluding evidenc e might rise to the level of a constitutional violation: 1) when a state evid en t i ar y rule cate g orica lly and arbitra rily prohibits the defe ndant from offe ring otherwise rele vant, reliable evidence which is vital to his defe nse; and 2) when a trial court’s clea rly err oneous rulingexcluding other wise re levant, re liable evidenc e that forms such a v i t al portion of the case eff ectively prec ludes the defe ndant from

14prese nting a defe nse. P o t ier , 68 S.W .3d at 659–62; accord Easley v. State , 424 S.W .3d 535, 540

(Tex. Crim. App. 2014); W illiams , 273 S.W .3d at 232; W alters v. State , 247 S.W .3d 204, 221 (Tex. Crim. App. 2007); Ray v. State , 178 S.W .3d 833, 835 (Tex. Crim. App. 2005); W iley , 74 S.W .3d at 405. I n the first scena

rio, “the constitutional infirmity is in the arbit ra ry rul e of evidenc e itself.” W illiams , 273 S.W .3d 232 (quoting W iley , 74 S.W .3d at 405); accord Hamme r v. State , 296 S.W .3d 555, 561 n.8 (Tex. Crim. App. 2009). I n t h e s ec ond scena rio, “the rule itself is appropr iate, but the trial c ourt err oneously applies the rule to exclude admissible evidence to such

an extent that it eff

ectively preve nts the defe ndant from prese nting his defe nsive theory .” W illiams , 273 S.W .3d at 232 (quoting W iley , 74 S.W .3d at 405); accord H ammer , 296 S.W .3d at 561 n.8. T h e ru le barring the admis sion of hearsay is not arbitra ry or di sproportionate to it s purpose, which is to preve nt the admission of statements that are reg arde d as inhere ntly unreliable

. See Fischer v. State , 252 S.W .3d 375, 378 (Tex. Crim. App. 2008) (“The hear say doctrine, codified in Rules 801 and 802 of the Texas Rules of Evidence , is desig ned to exclude out-of-c ourt statements offe re d fo r t h e truth of the matter asser ted that pose any of the four ‘hea rsay dang ers’ of faulty perc eption, faulty m emory , acc idental miscommunication, or insincerity .”); Guidry v. State , 9 S

. W

. 3 d 1 3 3, 151 (Tex. Crim. App. 1999) (re fer encing “pre sumption of hear say unreliability ”); State v. Kaiser , 822 S.W .2d 697, 700 (Tex. App.—For t Worth 1991, pet. re f’ d ) (obser ving that “[t] he conce pt of the inhere nt unreliability of hear say evidenc e . . . long predates our constitution.”). “State and Fe dera l Gover nments unquestionably have a leg itimate interest in ensuring that reliable evidenc e is p re s en t ed t o t h e trier of fac t in a criminal trial.” Scheffer , 523 U.S. at 309. The rule excluding hear say repr esents a rea sonable restric tion on the admission of ev i d en ce that

15acc ommodates other leg itimate criminal-tria l interests, namely , ensuring the reliability of evidenc e.

See P otier , 68 S.W .3d at 666.

Moreove r, the rec ord ref

le c ts th a t the proff ere d evidenc e was not “other wise rele vant, reliable evidenc e.” The trial court’s comments during the ong oing discussions about the admission of evidenc e of Torre s’s al l ege d conversation with M.G. ref lect the court’s conce rn that the

o ut- o f

- c o u r t s ta tements wer e not reliable —particula rly , the portion of the statement reg arding A.G.’ s purported outcry of sexual abuse. See, e.g. , Valle v. State , 109 S.W .3d 500, 506 (Tex. Crim. App. 7 2003) (holding that defe ndant’s hear say evidenc e that was not within exception and that did not bear “per suasive assura

nces of trustworthiness” was proper ly excluded). T h u s , the application of the h ea rs ay -wit hin-hea

rsay rule was not arbitra rily or unjustly applied to appellant. See Poti er , 68 S.W .3d at 662 (“[C ] o u rts are fre e to apply evidentiar y rules that are not arbitra ry and unjustified.”)

.

Whil e appellant contends that the hear say rule should g ive way in favor of his r ight
to put on a defe nse, “[t] he fac t that appellant was not able to prese nt his case in the form he desired d o es not amount to constitutional err or when he was not preve nted from prese nting the substance of his defe nse to the jury .” Valle , 109 S.W .3d at 507; a cc o r d P o t i er , 68 S.W .3d at 666. The exclusion of evidenc e about Torre s’s conver sation with M.G. did not eff ectively prec lude appellant from putting on his alternative- perpe trator sourc e-c onfusion defe nse; other options we re available to appellant.

After the trial judge noted that A.G. denied being sexually abused by any person other than 7 appellant and that “[w]e don’ t know if [A.G.] made the statement that the witness said she made,” the judg e obser

ved that “the re [are ] a lot of problems with this statement, any way .” 16First, M.G. was available as a witness at trial. I ndeed, appellant rec alled her as a

witness during his c ase- in-chief to te stify about the purported conver sation with Torres. H e could have asked her about A.G.’s outcry statement to her. Had appellant satisfied the statutory requisites, M.G. could have testified direc tly about A.G.’s outcry statement to he r, and such testimony would have been substantive evidenc e of the alleg ed sexual abuse. See Martinez , 178 S.W .3d at 811 (“[The first adult a child confide s in reg arding the abuse] m ay recite the child’s out-of-c ourt statements

conce rning the offe nse, and that testimony is substantive evidenc e of t h e cr i m e.”) ; Rodriguez

v. State , 819 S.W .2d 871, 873 (Tex. Crim. App. 1991) (“U nder Art. 38.072, by both the terms of the
statute and by the l eg islative history , outcry testimony

admitted in compliance w ith Art. 38.072 is admitted as an exception to the hear say rule, meaning it is considere d su b s t antive evidenc e, admissible for the truth of the matter a sserted in the te stimony .”).

Simi larly , appellant could have called the mental-he alth providers who provided
treatment, therapy , and counseling to A.G. Some of the medic al re cords a dmitted at trial indicted that A.G. might have discussed, or perha ps mentioned, sexual abuse by her “stepfa ther/mother’ s boy friend.” Appellant maintained that the ref ere nce to “mother’ s boy fr i end” was to J aime. The testimony of these mental-he alth providers would have been admissible under the medical diag nosis or treatment exception to the hear say rule. See Tex. R. Evid. 803(4) (establishing hear say statements made for purposes of medical diag nosis or treatment) ; Taylor , 268 S.W .3d at 589–91 (discussing application of hea rs ay ex ception under Rule 803(4) in context of t hera py provided by mental-he alth provider)

.

17Appellant was not preve nted from prese nting the substance of his defe nse. See

Potier , 68 S.W .3d at 665 (conc luding that “the exclusion of a defe ndant’s evidenc e will be constitutional err o r o n l y i f the evidenc e forms such a vital portion of the case that exclusion eff ectively prec ludes the defe ndant fr o m p re senting a defe nse”) ; see e.g. , Segundo v. State , 270 S.W .3d 79 , 1 0 1

– 1 0 2 (Tex. Crim. App. 2008) (appe llant’s constitutional rig hts to prese nt defe nse

wer e not violated by trial court’s exclusion of hear say evidenc e wher e appellant “could prese nt his defe nse without resor

t to unreliable hear say”). Appellant could have prese nted his “alter native-pe rpetrator source -conf usion” defe nse theory to the jury , albeit not in the form of inadmissable hear say evidenc e. “A defe ndant has a fundame ntal rig ht to prese n t evidenc e of a defe nse as long as the evidenc e is r eleva nt a nd is not excluded by an established evidentiar y rule.” Miller , 36 S.W .3d at 507; accord Henley , 493 S.W .3d at 83; Taylor v. State , No. 03-03-00624- CR, 2006 WL 1649037, at *15 (Tex. App.—Austin J une 16, 2006, pet. ref ’d) (mem. op., not desig nated for publication). Howeve r, whe n evidenc e come s in an objectionable form, neither the Texas nor the United States Constitutions require its admission. See Davis v. State , 313 S.W .3d 317, 329 n.26 (Tex. Crim. App. 2010) (obser ving that constitutional right to “meaning ful opportunity to prese nt

a complete defe nse” is qualified by require ment that defe n d ant’s evidenc e be rele vant and not excluded by established evidentiar y rule); Renteria v. State , 206 S.W .3d 689, 697 (Tex. Crim. App. 2006) (conc luding that admission of constitutionally rele vant evidenc e is not require d if it is otherwise obje ctionable unde r state law ).

The evidenc e appellant soug ht to admit about the alleg ed conver sation betwee n M.G. and his sister was inadmissible hear say -within-hea rsay . Thus, the trial court’s exclusion of the

18evidenc e on hear say g rounds was proper . See Potier , 68 S.W .3d at 666 (holding that hear say rule,

when proper ly applied, is valid l i m i t at i o n o n defe ndant’s evidenc e). Fur ther, this is not a case in which an acc used was hamstrung in prese nting a defen s e b y t h e invocation of an evidentiar y principle that elevated form over substance. The trial court’s ruling did not preve nt the prese ntation of appellant’s “sourc e c o n fu s i on” defense, for, as indicated, he could have prese nted the evidenc e throug h other witnesses with competent admissible evidenc e. See, e.g. , Boyd v. State , 643 S.W .2d 708, 709 (Tex. Crim. App. 1982) (obser ving that “the [evidentiary ] rule applied today does not cre ate an absolute bar to prese ntation of appellant’ s defe nse. He could have prese nted the witness in person to testify , or, by making proper demonstration of unavailability of that witness, he could have prese nted evidenc e of th e d ef ensi ve theory by alternative means. Ex clusion of the evidenc e for failure to demonstrate the require d predic ate did not deny appellant his rig ht to prese nt a def ense.” ). Appellant did not attempt to offe r admissible substantive evidenc e of an alterna tive p erp etrator but rathe r mere ly evidenc e of a conver sation about a conver sation about an alleg ed alternative perpe trator. For the offe red evidenc e to constitute substantive evidenc e of an alterna tive perpe trator, appellant had to demonstrate an applicable hear say exemption or exception. He did not. Appellant’s attempt to circ umvent the hear say rule by offe ring the evidenc e for the limit ed purpose of “impeac hment” did not constitute an offe r of substantive evidenc e of an alternative perpe trator.

Neither the hear say rule embodied in Rules 801 and 802 nor the hear say -within-hea

rsay in Rule 805 fall into the cate g ory of “ar bitrary” ru l es p roscribed by the Supreme Court, i.e., rules that excluded important defen s e evidenc e but that did not serve any

19leg it i m at e interests. See, e.g. , Ferguson v. Georgia , 365 U.S. 570 (1961); W ashington v. Texas , 388 U.S. 14 (1967); Chambers , 410 U.S. 284; Rock, 483 U.S. 44. The application of the hear say rule in this case wa s neither a

rbitrar y nor unjust as the excluded evide nce w as not “other wise re levant, reliable evidenc e.” M o re o ver, the exclusion of the hear say evidenc e did not eff ectively prec lude appellant from putting on his “sourc e confusion” defe nse. Consequently , the exclusion of evidenc e about Torre s’s conver sation with M.G. did not violate appellant’ s rig ht to prese nt a defe nse. Thus,

we cannot conclude that the trial court abused its discretion when it exclude d the evidenc e. We

overr ule appe llant’s sole point of err or.

CONCLUSION Having conclude d that the trial court’s exclusion of the hear say evidenc e at issue did
not deprive appellant of his constitutional rig ht to prese nt a defe nse, we aff irm the trial court’s judgme nt of conviction.

__________________________________________ Melissa Goodwin, Jus tice Be fore J ustices Goodwin, B aker , and Smith Affir med Filed: Apr il 25, 2019 Do Not Publish

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