## In the Court of Appeals Second Appellate District of Texas at Fort Worth

___________________________ No. 02

- 18

- 00196

- CR

_____________ ______________

On Appeal f rom the 297th Dis trict Court Tarrant County, Texas Trial Court No. 1510954R
Before Sudderth, C.J.; Gabriel and Kerr, JJ. Memorandum Opinion by Justice Kerr 

### C AMERON 

### P HILLIP 

### E SPA RZA 

### , Appellant

V


### . T HE 

### S TAT E OF 

### T EXAS2 MEMORANDUM OPINION
In two points , Cameron Phillip Esparza appe als his conviction and resulting
40

- year sentence for knowingly causing serious bodily inj ury to a child. See T ex. Penal Code Ann. § 22.04(a)(1). He first argues that the trial court violated his right to confront witnesses aga inst him by wrongly limiting his cross

- examination of one of
the State ’ s wit nesses , claimi ng that he was e ntitled to delve into that witness ’ s alleged
racial or ethnic b ias es ; second, he argu es punish ment

- charge error , contending that he
was har med by the t rial court ’ s including a good

- conduct

- time instructio n when the
nature of his conviction is such t hat he cannot accumulate good

- time credit

. We will affirm

. Background
Because E sparza does not challenge the evidentiary sufficienc y und erlying his conviction, we need not recount the facts in grea t detail. In the summer of 2013, Espar za had a live

- in relationship with H.R., who was the mother o f then

- one

- y ear

old L.F. from a previous relati onship ; the three of them lived at a Budget S ta y Suites in Arlington

. 1 H.R. ’ s father (and L.F. ’ s gran dfather) , J. R., was a n onsit e maintenance man at the BudgetStay , where he and his girlfriend T.D. lived in an ot her unit. 2

1 W e use initials r ather than actual names fo r t he m inor victim and his fa mily members

. See Tex. R. A p p. P. 9.10 (a) (3).

2 I n his first appellate point , Espar za compl ains about limits put on T.D. ’ s cross

- examination

.3 Late in the afternoon o f August 1, 2013, H.R., L.F., and Esparza went to eat at
a McDonald ’ s. L.F. app eared to be fine , by al l accounts. The three returned to the BudgetStay, where H.R. got re ady for her job working evenings and nights a t a h ot el near the airpor t
. H.R. left L.F. in Esparza ’ s care around 8:1 5 p.m. Bo th J.R. and T.D.
had br ief s eparate interactions with Esparza during the course of the evening , which
each described as involving Espar za ’ s acting oddly. Shortly before midnight , J. R. and T.D. saw Esparza again , when he sh o wed up at J.R. ’ s apar tment and asked to use the ir phone to call H.R. (Espar za did not have a

wo rking telephone. ) After H.R. spoke with either Esp a rza or J.R. or both

— the re cord
is n ot entirely clear

— H.R. asked J.R. a nd T.D. t o check on L.F. J.R. and T.D. foun d L.F. ly ing on the bed in Esparza and H.R. ’ s room , apparently dead. Carrying L.F., they rushed to the motel office and asked Kalpesh Patel, the manager, to call 911. Patel tes tified that L .F. a ppeared to be dea d , b ut Patel
called 9 11 and relayed instructions from the operator to J.R. about performing C PR ( c ardio pulmonary r esuscitat ion ) on L.F. According to Patel, J.R. was “ not pressing
har d ” on L.F., as if he was afr aid he might hurt the child , a fear th at J.R. c o nfirmed

. J.R. performed CPR on L.F. for only a “ few seconds ” before an office r arrived and
took over. At trial, that officer

— Officer Peter Hughes

— desc ri bed arriving at the BudgetSt ay around 12:25 a.m. on August 2, 20 13 , and taking over CPR from J.R.
Alth ou gh L.F. showed “ no signs of life, ” Officer Hughes perfo rm ed CPR until the4 ambulance arrived

. When a sked why he was doing CPR on a body that was “ cold to the touch, ” with “ op en, ” “ lifeless ” eyes, Offic er Hughes responded that “ you always hold out hope for a
– for a child. ”
L.F. was not resu scitated. Dr. Tasha Greenberg, who autopsied L.F. ’ s body , testified that L.F. ha d visible injuries , but she opined that he was already dead when CP R was administere d

. 3 Dr. Greenberg described mul tiple small injuries to L .F

. ’ s head, as well as a bdominal
b r uising and 36 rib fractures that varied in age. L.F

. ’ s liver was lacerated, and his spleen, lung, and adrenal glands were i njured , all of which ind icated blunt

- force

trauma that occurred before death

. In Dr. Gr eenb erg ’ s o pi nion, L.F. was probably already dead when 911 was called and was definite ly so by the time the parame dics
arrived.
T he jury charg e instructed the j ury on capital murder and on four lesser

included offenses

. The jury return ed a guilty verdict on the lesse r

- included off ense of knowingly causing se riou s b odily injury to a child and, after the trial ’ s punishment phase, recommended that Esparza be sentenced to 40 years ’ impri s onment on this
first

- degree felon y . See Tex. Penal Code Ann. § 22.04(e). The trial co ur t sentenced Esparza acco rdi n gly

.

3 Esparza the orized at t ri al that J.R. ha d per formed CPR too vigorously, fatally injuring L .F. J.R. himself t estified that he “ felt like [he] di d some thing wrong ” and expressed regret: “ And I still do [fe el that way] , I ’ m sorry. ”5 Appellant ’ s Arguments Esparza has framed his two “ points of error ” this way:

• “ Appellant ’ s right to confront t he witness es against him was violated when the trial court limited his cross [

- ] examination of a St ate witness. ”

• “ The trial c ourt ’ s jury charge on punishment is violative of Appellant ’ s rights to due process and d ue course of law. ” Discussion
Po int One: R ight to confront witnesses.
We review for an abuse of discretion a trial court ’ s deci sion to e xc lu de evidence by , fo r example, limiting cross

- examination , and we will uphold that decision if it falls
within the “ zone of reasonable disagreement. ” Jo hnson v . State , 490 S.W

. 3d 895,
908 ( Tex. Crim. App. 2016). A defendant ’ s Sixth Amendment rig ht to con front t he
witnesse s ag ai nst him , while broad, is not unfettered

. Id. at 909

– 10 ; U.S. Const.
amend. VI . Rather, a trial court may impose reas onable limi ts on conf rontation

— that is, on cross

- examination

— if concerns exist about such things as “ harass ment,
pre judice, confusion of t he issues, the wi t ness ’ safety, or interrogati on that is repetitive or only marginally relevant. ” Dela ware v. Van Arsdall , 475 U. S. 673, 67 9, 106 S. Ct. 1431, 1435 (198 6); Johnson , 490 S.W.3d at 910. Nonethe less, although a d efendant
does no t have an “ abso lute right to impeach ” a witness ’ s general cre dibility , “ the
Constitution could be offended if a state evidentiary rule prohibite d t he defe ndant
from cross

- examining a witness concerning possible motives, biases, and prejudic es to6 suc h an ex ten t he cou ld n ot present a vital defensive theory. ” Johnson , 490 S.W.3d at
910.
Here , the trial court did not allow Esparza to cross

- examine T. D. about h er racial or ethnic b iases. T.D. was the only witness to testify that on the night L.F . died,
E sparza had alleged ly t old her that “ he didn ’ t want the baby no mo re. He didn ’ t want to take care o f the baby no more

. ” 4 Particularly b ecause o f that sin gle

- sourced comment, Esparza contends that it wa s critical that he be allowed to cross

- examine
T.D. ab out a pretr ial state ment she had volunteered to o ne of the prosecu tor s, which the prosecuto r memorialized in an undated email sent to defense co un sel befo re the
trial started : “ [T.D.] has said that she is kind of a raci st. But she does not have a
pr oblem w ith Mexican s. ” 5
A fte r Es parza told the trial court t hat he inte nded to cross

- examine T.D. about
that sentimen t when trial resum ed the nex t morning , 6 b oth Espar za and the State questioned T.D. outside the jury ’ s presence , el i citing the foll owing infor mation:

4 T.D. al so claimed that J.R. had performed CPR proper ly on L.F. , testimony that BudgetStay manager Patel corroborate d by sayin g that J.R. was “ not pr essi ng hard ” on L. F. and seemed to be afraid o f hurting him during the “ few seconds ” J.R. administered CPR before the off icer arri ved

.
5 T. D. is Cau c asian, as are J.R. an d H.R. L.F. had a Hispanic father and so was of mixed e t hn ic ity , and Esparza is Hispanic

.
6 It was at the end of a day of trial when Esparz a voiced hi s intent to “ ge t
. . . int o that ” su bject with T.D. the next morni ng , to which the trial court responded,

“ Well, let ’ s go ahead an d do it now . Go ahead a nd mak e your bill on her right n ow. ”7 • T.D. had been “ rap ed s everal times by a black person ” ;

• T.D. was raised by a stepfather who “ did not like blacks ” ;

• Her stepfather ’ s being “ racist ” was a “ big thing in [her] family for a while ” ;

• T .D. was prejudic ed only aga inst “ [ b ] lacks, ” although she h ad been raised “ not to mix colors, you know, like whites stay w it h white, Mexicans stay with Mexican, ” b ut that wa s a view T.D. had held “ when [she] was g rowing up with [her ] family ” ;

• A ge 52 at the time of trial , T.D. was “ different now, ” “ [ n

] ot really ” believing anymore that r aces should not mix (though she equivocated) ;

• T.D. was no t bother ed by the fact that H.R. and Esparza were a “ mixed couple ” ; but

• T.D. could no t explain why sh e had volun t eered to the pro secu tor that she was

“ a little bit racist, kind of rac ist. ” After the Stat e objected on relevance and impro pe r

- impeac hment grounds to the jury ’ s hearing this proposed testimony , the trial court broadly sustaine d the State ’ s objections:
THE COU RT: Well, it is improper impeachment. It is impeachment on collateral matter. It ’ s coll ateral impeachment. That ’ s what it really is. [DEFENSE COUNSEL]: Your Honor, it shows bias or prejudice. THE COURT: Ye ah, not against your client , it didn ’ t.

Esparza did so , and he and the State questioned T.D. more the n ext day , again out si de the jury ’ s presen ce .8 It ’ s a lso a 412 violation. You are not going to get into this

– this wi tness ’ s bei ng raped or

– or anything li k e that. So you ’ re not going to ask it. And I ’ m going to make a finding that the probati v e value is subs tantially outweigh ed by the prejudici al effect. Whe ther

– whether or not she was raised one way doesn ’ t have any relevance in this case. It ’ s

– it ’ s either

– s o I ’ ll sus tain the [objection] either on relevance and /or on impeachment on a collateral matter or collateral impea chmen t. Esparza did not make a C onfrontation C lause or other constitution al argument in the trial court for why T.D. ’ s tes timon y was oste nsibly admissible, asse rting only
that her testimony , if allowed, would reveal her bia s or prejudice.
As with many error

- preservation situation s , a defendant mus t firs t have object ed in the trial court before he may complain on appeal , e v en about a n alleg ed
constitutio nal infringement such as a Con frontation Clause violation

. See Craven v.
State , 579 S.W.3d 784, 7 88 (Tex. App.

— H o uston [14 th Dist.] 2019, no pet.) ( “ Because appellant failed to raise his Confrontation

- Clause objectio n at the tim e the lab r eport was off ered into evidence, appellant has waived this complaint on appeal. ” )

. Similar to

a recent case from the co urt of c riminal appeals, “ [n]othing in the record indicates that Appellant properl y put the trial judg e on no tice that he was making a
Co nfrontation C lause argument in support of admitting the exc lu ded evidence. ” Golliday v. State , 560 S.W.3d 66 4, 670 (Tex. Crim. App. 2018). We c onclude that Espar za did not preserve his constitution

- rela ted appellate compl aint.9 E ven so, assum ing that Espa rz a had preserv ed his complaint, a trial court may
exclu de evidence that is “ only marginally relevant

. ” Van Arsdall , 475 U.S. at 679,
106 S. Ct. at 14 35

. Wh ether T.D. was biased against Afri ca n

- Americ ans was irrelev ant to whether she was motiv ated to testify falsely agai nst Espar za, a Hispanic man. See Gonzales v. State , 929 S.W.2d 546, 551 (Tex. App.

— Austin 1996, pet. ref’d) (holding no abuse of discretion when the trial court kept out evidence of a w itness’s racial and ethnic slurs against Af rica n

- Americans and Hispanic s, which he uttered while kicking
an African

- American detainee; the statements were more probative of prejudice against African

- Americans than against the defendant’s ethnic group and w ere of “marginal relevance”)

. And E sparza d id n ot show how T.D

. ’ s preju dic e agains t mixed
racial or ethnic couples

— assuming she still had any

— played any role in her
testi mony. See Van Arsdall , 475 U.S. at 679, 106 S. Ct. at 1435 ( “ [ T] rial judges retain
wide latit ude insof ar as the Confrontation Cla use is c o ncerne d to impose reasonable
limits on such cross

- examination based on concerns about, amon g other things,
harassment , preju dice, confusion of the issues, the witness ’ safety, or interr ogation that is repeti t i v e or only mar ginally relevant. ” ); M ar

tin e z v. Sta te , No. 14

- 98

- 01138

- C R , 200 0 WL 767825 , at * 5 , * 6 (Tex. App.

— Houston [14th Dist.] June 15, 2000, pet.
ref ’ d) (not designated for publication) (noting that a party w ishing to impeach a
witness for bias must “ att empt to show that the wi t n ess ’ s at titu de is such that h e is
li kel y to f avor or disfavor a particular litiga nt ’ s position for reasons unrelated to the
merits of the suit , ” and hold ing that appellant failed to sh ow (1) that th e witness ’ s10 “ ou tbursts demonstra ted bias or prejudice against homo sexu al s in gen eral ” and (2) th at the outb ursts showed that the witness was “ falsely testifying against appellant
because he hated homosexuals ” ).
B ecause Esparz a has not preserved his complaint and has not shown an abuse
of discretion here even if he had , w e ov errule hi s first p oint

. Point Two: Jury charge on punishment. Esparza next compl ains th at the punishment charge harmed him by instructing the jury that “ if sentenced to a term of impri sonment, [Espar za] may earn time off the period of incarceration imp osed through the award of good conduct time. ” The
offense of which Espa rza w as co nvicted , though, precludes accumulating good

conduct credit for parole purposes

. See Tex. Gov ’ t Cod e Ann. § 508.14 5(d)(1)(A); Tex.
Code Crim. Pro c . Ann. art. 42A.054(a)(10). N onet he less, the Code of C r iminal
P rocedure mandates this i nstruction ’ s wording , as Esparza con cedes , even if it is futile
and potentially confusing in a c ase such as this one . See T ex. Code Crim. Pro c . A nn .

ar t. 37.07 , § 4(a) ; Luquis v. State , 7 2 S.W.3d 35 5 , 3 63

– 65 (Tex. Crim. App. 200 2); K night
v. State , 504 S.W. 3d 524, 532 (Tex. App.

— F ort Worth 2016, pet. ref ’ d)

. Esparza acknowledges that controlling preced ent is against hi m but has raised this issue solely

t o preserve it for further review.
O ur earlier d iscu ssion of Luq uis answ ers this issue w ith a brevity tha t we ca nnot improve upon , and so we will simply quot e it :11 Luquis held that the i nstruction required by art icle 37.07, section 4(a) do es not violate a defendant ’ s due process or due course of law righ ts. In so holding, the court noted that the statutorily [ ] provide d instruction “ informs the jury of the existence of good c onduct time, briefly des cr ibes that concept, and expl icitly tells the jury not to apply that concept to the particular def endant ” and t hat we assume that the jury followed th e instructions as given. We do not have discretion to reject the holdi ngs of the court of crim in al appeals. W e therefore overrule App ellant ’ s second point

. Kn ight , 504 S.W.3d at 532 (cit ations omitted)

. We overrule E spar za ’ s second point

. Conclusion
Ha ving o v erruled Espar za ’ s two appellate poi nts , we affirm the judgment
bel ow.

/s/ Elizabeth Kerr Elizabeth Kerr Justice
Do N ot Publish Tex. R. App. P. 47.2(b)
De livered: October 31, 2019