### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-0 7 -00 514 -CR

Te odo r o So sa , A ppe lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 167TH JUDICIAL DISTRICT NO. D-1- DC-05 -30 0497 , HO NORAB LE MICH AEL LYNCH , JUDGE PRESIDI NG

M E M O R

A N D U M O P I N I O N
Teodoro Sosa w as cha

rg ed with indece ncy

with a child by contac t. See Tex. P enal Code Ann. § 21.11(a )(1) (West Supp. 2009). A jury found him guilty of the off

ense a nd assessed punishment at ten y ear s’ conf inement , b u t re co mmended that the se ntence be suspende d and that Sosa be g iven ten y ear s’ community supervision. The tria l court entered judgment on the ver dict and pla c e d Sos a

on c omm un ity su pe rv isi on . So sa

a pp e a ls f ro m th e jud g me nt o f c on vic tio n, arguin g that, by excluding ce rtain evide nce, the trial court de nied him h i s constitutional right to be c onfronted with the wit nesses a g ainst him. See U.S. Const. amend. VI
. We a ffirm the judgme nt of conviction.
BACK GR OUND I n late 2004 and ear ly

2005, K.F., the complainant in this case, w as staying w ith her fa mil y a t So sa ’s ho me in Aus ti n fo r t he ho lid ay s, a s So sa ’s br oth e r, Carl os Sos a , w a s ma rr ie d toTo avoid conf usion, we will ref

er to Car los Sosa by

his first name. 1 2 K.F. ’s m ot her, E. F. On the evening of J anuar y 1, 2005, Sosa’s wife a ccompa nied E.F . and Carlos 1 to downtown Austin, leaving Sosa to supervise the e leven- y ear -old K.F ., as we ll as h er y oung er brother a nd Sosa’s own two childre n. At trial, K.F . testified that at some point while her mother and stepf ather wer e g one, she and Sosa we nt to the ga rag e to re trieve a box for her puppy . The two of the m then went to the la un dr y ro om, wh e re the y

pla c e d th e pu

pp y in t he bo x. Ac c or din g to K .F ., wh ile sh e wa s a lon e wi th Sosa in the laundry

room, he asked her if she “had boobs.” K.F . testified that she a nswere d, “I

don’t know,” a nd Sosa asked he r to “do a pose for him.” When K.F. r efuse d, Sosa asked if he could se e and touch her brea sts. K.F. testified that she re fused a g ain, then lef t the laundry

room bec ause she
was unc omfortable w ith Sos a’s que stions. A short tim e later , Sosa called her to the l iving r oom and asked her to sit on his la p. K.F. explained that she felt “kind of weird” about t h i s re q u es t , b ut complied. K.F . testifi ed t h at while she wa s sitti ng on Sosa’s lap, he he ld her tig htly around the st om ach w it h o ne h andandbegan t ou chi ng her b reas ts in a ci rcul ar m ot io n wi th th e ot her h and . K. F. stated that this touching oc curr ed both over and under

her c lothing. She fur

ther testified Sosa wa s holding he r so tightly

that she could not g et awa y , so she eventua lly

told him s he nee ded to g o to the restroom in orde r to esca

pe. K.F
. then ran to the bathroom and locked the door . She testified that when she emer g ed from the restroom, “[Sosa] told me that it wa s . . . an ac cident, that he didn’ t mean to touch me, and that that is how he play s with [hi s daug hter, J .S.,] and her friends. Itold him no, that that was ba d, beca

use that is—he wa sn’t tickling me.” K.F. further testified that Sosa war

ned her that if she told her mother about t he touching, “the family would come a part a nd they wouldn’tK.F. a lso testified that Sosa made seve ral phone calls to her mother befor e fina lly

rea ching 2 Carlos and re questing that the other a dults return to the house. 3 be tog ether .” Ac cord i n g t o K. F. , Sosa then asked his da ug hter, J.S ., to speak to her about the incident. K.F. testified, “J.S
. comes and tells me that her dad said that he is sorry and that he didn’ t mean to touch me.”

Sosa’s testimony

prese nted a diff

ere nt version of the e vents of January 1 , 2005, alt ho ugh s ever al d eta il s w ere co ns is ten t w it h K.F.’ s tes ti mo ny . Accord in g to S os a, h e ask ed K .F. to put her puppy

in a box beca

use it wa s not house -traine d and had been r elieving itself inside the ho us e . He th en accom panie d K .F . to the g ara g e to s ho w h e r w he re sh e c ou ld f ind a bo x. Sos a tes ti fi ed tha t he walk ed wit h K.F. to th e lau nd ry roo m and pl aced th e pupp y in th e bo x , cau si ng K.F. to become a

ng ry with him beca

use she did not want to leave he r puppy alone. Ac cordingto Sosa, he then c alled K.F . to the living room a nd sat her on his lap in order to comfort her. S osa testified th a t h e ti c k le d

K
. F
. a s s h e tr ie d to g e t u

p f r o m h is la p , s tati n g , “ [S ]h e tr ie d to mo v e , an d Is a id [K
. F
. ], y ou listen to me and Ig rabbe d my hands like this, around he r like this, and
. . . she start try ing to g et up from me, I

do like this and Itickle her like this .
. . .” K.F . then g ot up from Sosa’s lap a nd ran t o t h e bathroom and be g an to cr y . Sosa testified that he a sked her why she wa s cry

ing a nd she
answe red, “ Be cause y ou touch my boobs.” Sosa stated that he immediately denied this ac cusation and beg an trying to r eac h E.F. on the phone. Sosa denied telling hi s daug hter that he had touc hed 2 K. F . b y a c c ident , bu t st a te d th a t he e xpla ine d K .F .’ s a lle g a tio ns to J.S. and sh e imm e diate ly responde d, “No, [K.F.], my daddy never do that.” At trial, Sosa took the position that K.F. lied a bout him tou c hin g he r b re a sts be c a

us e sh e wa s ang ry a

bo ut he r pup py be ing c on fi ne d to the la un dr y ro om.4 Both Sosa and K.F. testified that when E.F., Car los, and Sosa’s wife returne d to the house, K.F . imm ed i at el y t o l d E.F. that Sosa had touched he r bre asts. E.F. te stified that when she
arr ived at th e h o me , So s a w a s p a le an d s w e a ti n g , an d th a t “ h e w a s tr y in g to ta lk o v e r [K
. F
. ], he wouldn’t let her ta lk, he was saying—he was try ing to excuse himself, saying that it was a mistake.” E. F . f ur the r t e sti fi e d th a t sh e imm e diate ly be lie ve d h e r d a

ug hte r’s a lle g a tio ns . E .F ., K. F ., Carl os , and K. F .’ s br oth e r t

he n le ft Sos a ’s ho me and

we nt t o a ho te l. E .F . te sti fi e d th a t sh e le ft wi tho ut a confr ontation, but Sos a and his wife both testified that E.F . beca me ang ry , throwing and bre aking a g lass relig ious object befor e lea ving the house. K.F. and her

family returne d to their home in Del Rio the next day , and on J anuar y 4, 2005, E.F. repor

ted the touching incident to counselors at a family violence c enter . The counselors in turn c on t ac t ed t he Austin Police Depa rtment, leadingto Sosa’s arr est for inde cenc y wi th a c hil d b y c on ta c t. At tr ia l, d e fe ns e c ouns e l a tte mpt e d to int ro du c e an a

ud io c a sse tte ta

pe that a lle g e dly
co n t ai n ed a re cordingof E.F . scre aming at K.F . and ca lling her derog atory

names. The defe nse’s the o r y w a s th a t K
. F
. li e d

a b o u t t h e to u c h in g b e c a

u s e s h e w a s an g r

y w it h So s a , an d

th e nr e ma in ed committed to her orig inal story becau s e s h e was afra id to tell her mother that she ha d lied. After both K .F. and E.F. testified that K.F. had a g ood relationship with her mother and was not a fra id of her, the defe nse soug ht to admit the tape rec ording as impeachme nt evidence . The tape was play ed outside the p r e s e n c e o f th e ju r y , an d E
. F
. d e n ie d th a t it w a s h e r v o ic e o n th e r e c o r d in g . T he trial court e x cluded the ta

pe on the g rounds that it w as not pr operly authenticated and that its probative value wa s outweig hed by the risk of unfa ir prejudice
. See Tex. R. Evi d. 403.5 De fe ns e c ouns e l a lso so ug ht t o c ro ss- e xami ne the State ’s e xpe rt wi tne ss o n c hil d abuse a bout cer tain repor ts from C h i l d Protective Servic es (“ CPS ”) involving prior alleg ations of abuse in whic h K.F
. wa s t h e v i cti m. The trial cour t sustained the State’s objec tion to thi s line of questioning a

nd ruled that a

ny evidenc e of p ri o r alleg ations of abuse would have to be prese nted outside the prese nce of

the jury for a ruling on its admissi bility
. De fense counsel indicated to the trial court that ther e we re w itnesses who could testify reg arding prior allegations of abuse by K.F., but no such witnesses we re e ver c alled.

After hear ing the evidenc e, the jury found S osa guilty of indec ency

with a child by contac t and assesse d punishment at ten y ear s’ imprisonment, but recommende d that the sentenc e be suspended a

nd Sosa be put on ten y ear s’ communi ty supervision. The trial court e ntere d judgme nt on the ver dict and plac ed Sosa on community supervision. Sosa’s mo t i o n fo r n ew tria l was
overr uled, and this appe al followed. I n a sing le issue on appe al, Sosa argues t hat by excluding the e vidence of prior
a lle g a tio ns of

a bu se and the c a sse tte ta

pe , th e tr ia l c ourt

de pr ive d h im of hi s ri gh t to fu lly c ro sse xami ne the wi tne sse s te sti fy inga g a ins t hi m.
STA ND AR

D O F RE VI EW The Six th Amendment g uara ntees the rig ht to confr ont w itnesses, which includes the rig ht to cross-examine witnesses to attac k their gene ral credibility or to show their possible bias, selfint e re st, or

mot ive s in

te stify in g. U. S. Co ns t. a me nd . V I ; see D avis v. Alaska , 415 U.S. 308, 316 (1 97 4) . H o w e v e r , t h e t r i a l c o u rth a s w i d e d i s c r e t i o nu n d e r t h e S i xth A m e n d m e n tt o imp os e restric tions on cross-examination. Se e De law ar e v . V an Ar sd all , 475 U.S. 6 7 3 , 6 7 9 (1986);6

Cas tlev . S

tat e , 748 S.W .2d 230, 233 (Tex. Crim. App. 1988). Thus, the standar d of re view for an alleg ed violation of the rig ht to confront a w itness is abuse of di s cre tion. Lag ro ne v . S tat e , 942 S.W .2d 602, 613 (Tex. Crim. App. 1997). “[T] he trial court ex cee ds its dis cre tion only when it prohibits a defenda

nt from eng ag ing in othe rwise appropr iate cross-e x amination desig ned to show a prototy pical form of bias on the part of the witness.” Id. Mo st q ue sti on s c on c e rn ingc ro ssexamination may be resolved by looking to the Texas Rules of Evidence , as the rig ht to pr esent
e vid e nc e and

c ro ss- e xami ne wi tne sse s und e r the Sixth Am e ndme nt g e ne ra lly do e s n ot c on fl ic t w ith the cor respondingrig hts under st ate evidentiary rules. Ha mm e r v . S tat e , 2 9 6 S. W. 3 d

5 5 5 , 5 6 1 ( T e x. Crim. App. 2009). I n the rare event of a conflict, the Confrontation Clause pre vails. Id. ; se e als o Tex. R. Evi d. 101(c)
. We may not disturb a trial court’s ruling under the rule s of evidenc e abse nt an abuse of discre tion. Sa uc e da v . S tat e , 129 S.W .3d 116, 120 (Tex. Crim. App. 2004).
DI SCU SSIO N Pr ior Al le ga tio ns of A bu se Sosa argues that the trial c ourt violated his rig hts under the Si x th Amendment by not perm it ti ng hi m t o cro ss -ex ami ne t he S tat e’s ex pert abo ut pri or al le ga ti on s o f abu se m ade b y K.F. Sos a c la ims tha

t th e e xpe rt

ha d r e c e ive d inf

or ma tio n f ro m th e State re g ard ingthe se pr ior a lle g a tio ns , and that, g ive n th e op po rt

un ity to f ull y c ro ss- e xami ne the e xpe rt , he c ou ld have imp e a c he d K .F . w ith
e v i d e n c e o f

h e r “ h a b i t ” o f m a k i n g f a l s e a l l e g a t i o n s w h e nan g r y. Texas Rule of Evidenc e 608(b) provides that “[s]pecific instance s of the conduc t of a witness, for the purpose of attacking or supporti ng the wit ness’ credibility , other than c onviction of a c ri me a s p ro vid e d in

Rul e 60 9, may

no t be inqui re d in to o n c ro ss- e xami natio n o f t he wi tne ssDe fe ns e c ouns e l as ked the e xpe rt

if he ha d b e e n p ro vid e d w ithc op ie s o f t he tw o CPS 3 re po rt s, to w hic h th e e xpe rt re sp on de d that he ha d no t. A d isc us sio n w a s th e n h e ld at th e be nc h, in wh ic h th e State e xpla ine d th a t the CPS re po rt s in qu e sti on we re “ inv e sti g a tio ns of

ph y sic a l a

bu se by other re latives, not the mom, that were ruled out.” 7 no r p ro vid e d by e xtri ns ic e vid e nc e .” Te x. R. Evi d. 60 8( b)
. Th e c ourt of c ri min a l app e a ls ha s h e ld that wh ile the re is no pe r se e xce pti on to R ule 60 8( b) fo r s e xua l of

fe ns e s, the Con fr on ta tio n Cl a us e
occa sionally

may require the admissibilit y of evide nce that the rules of e vidence would exclude. Lop e z v . S tat e , 18 S.W .3d 220, 225 (Tex. Crim. App. 2000). Thus, it is necessar y to balance the pr ob a tiv e va lue of

the e vid e nc e so ug ht to be int ro du c e d a g a ins t the ri sk that its a dmi ssi on may e nta il. Id. at 222. I n Lopez , th e c ourt he ld t hat w he re a

pr ior a lle g a tio n o f a

bu se wa s n ot s ho wn

to be fa lse and whe re it involved phy sical abuse rathe r than sexual a buse, its probative value w as outweig hed by the risk that it would unduly prejudice and confuse the jury
. Id. at 226 (“Without proof that the prior ac cusation wa s false or that the two ac cusations wer e simila r, t h e ev idence fails to have a ny probative va lue in impeaching[t he complaina nt’s] credibility

in this case.”)
. Th e re c or d indi cat es th at Sos a so ug ht t o q

ue sti on the State ’s e xpe rt

on tw o CPS repo rt s inv ol vi ng ph y si cal abu se of K. F. A prior report of phy sical abuse is not sufficiently simil ar 3 to an alleg ation of s ex u al ab u s e to have any probative va lue, par

ticularly g iven the risk that such
e v id e n c e w o u ld u n d

u ly p r e ju d ic e an d c o n f

u s e th e jury
. See id. at 226. Fur thermore , the re cord contains no evide nce of

the circ umstances surr ounding the m ak ing of these re ports, including whether they wer e made by K.F. or someone else. Be cause Sosa made no off er of proof r eg arding the CPS repor

ts in question, there is nothing for this Court t o revie w. See Tex. R. Evi d. 103(a) (2)After E.F. denied knowledg e of any previous repor ts, de fense counsel re prese nted to the 4 tr ial cou rtth at h e had a wi tn ess who wou ld tes ti fy th at he had been fal sel y accus ed o f t ou chi ng K.F. inappropriately . The trial c ourt stated that any testimony

to that effe ct would nee d to be pre sented outside the prese nce of

the jury to obtain a ruling on its admissibili ty
. The defense made no f urther a tte mpt s to of

fe r e vid e nc e re g ard ingpr ior se xua l a bu se a lle g a tio ns . 8 (er ror may not be pre dicated upon exclusion of evidenc e wher e substance of evide nce w as not made known to court a

nd was not appa

rent fr om context wit hin which questions wer e aske d). Af t er t h e e x p er t ’s t es t i m o n y , t h e t ri al co u rt al l o we d d ef en s e c o u n s el t o co n d

u ct a brie f
v o ir d ir e o f E
. F
. , d

u r in g w h ic h ti me h e a s k e d h e r if s h e w a s aw ar e th a t K
. F
. h a d ma de two prior alleg ations of sexual abuse. E.F . denied having know ledg e of any prior repor ts. Sosa prese nted no
c omp e te nt e vid e nc e that any such a lle g a tio ns we re a c tua lly ma de , o r i f m a de , th a t th os e alleg ations were false. 4

Sosa now argues that the trial court prevented him from cr oss-examining the State’s expert on not only

the two CPS repor

ts of phy sical abuse , but also the two prior allegations of sexual abuse. A ccor ding to Sosa, the pr ior sexual abuse alleg ations wer e admissi ble t o show K.F .’s motives for testify ing and her habit of m aking false a ccusations. See Tex. R. Evi d. 404(b) ( evidenc e of pr ior bad ac ts is admissi ble as proof of motive), 406 (e vidence of habit is rele vant to prove that conduct of per son on particular

occa sion was in confor

mity with habit). Howe ver, Sosa did not establish that the State’s expert had know ledg e of a ny prior alleg ations of sexual ab u s e o r that he could have testified to the ir exist ence . See Te x. R. E vid . 1 03 (a )( 2) ; se e als o Lov e v . S tat e , 861 S.W .2d 899, 902 (T e x. Cr im. Ap p. 19 93 ) (“ [E]ve n if c ro ss- e xami natio n is lim ite d b y the tr ia l c ourt , n oth ingis prese nted for r eview if

there is no proof what the testimony would have been
. . . .”). Fur ther, e ven if the su bs tanc e of

the e xclu de d te sti mony ha d pr op e rl y be e n p re se nte d f

or re vie w, the ri sk

of un fa ir prejudice g reatly

outweig hs its probative value, a s Sosa presente d no evidenc e that any previousThe interpr eter explained that the speake r wa s using Spanish words that indicated she w as 5 talking to a

y oung fema le. 9 alleg ations of sexual abus e b y K.F. w ere actua lly false. See Lopez , 18 S.W .3d at 226 (re quiring proof of falsity befor e evide nce of

prior abuse alleg ations can be probative)
. B e c a us e Sos a ha s p re se nte d n oth ing fo r r e vie w r e g ard ingthe te sti mony he so ug ht t o elicit on cross-e x amination and bec ause he failed to establish that any prior alleg ations of abuse wer e both false a

nd simil ar in n at ure to the a lleg ations at issue here , see id. , we hold that the tria l court did not abuse its discretion in excluding such e vidence
. Tape Rec ording

Sosa also argues that the trial c ourt violated hi s rig hts under the Six th Amendment by not permitting him to impeach E.F
. with an audio tape that alleg edly contained a

rec ording of her y e lli nga t K .F . a

nd c a lli nghe r d e ro g a tor

y name s. Ac c or din g to S os a , thi s r e c or din g wa s r e le va nt t o his the or y that K .F . w a s ma int a ini nghe r s tor y a bo ut t he tou c hin g i nci dent be c a us e sh e wa s a fr a id to tel l h er m ot her t hat sh e had li ed. S os a argues th at th e reco rdi ng was adm is si bl e to im peach K.F. and E.F ., both of whom testified that they had a g ood relationship. Sosa initi ally

attempted to play

the tape dur ing cross-e x amination of E.F ., leadingthe State to object on relevanc e g rounds. See Tex. R. Evid. 402. The trial c ourt then allowe d the tape, which is entirely

in Spanish, to be p l ay ed and tr anslated outside the pr esenc e of the jury . The interpre ter e x plained to the trial c ourt that it was difficult to understand the voic es on the tape , but translated a

portion of the tape that included a w oman’s voice using de rog atory terms, including
ra c ia l sl ur s, in r e fe re nc e to a g ir l. The re cordingwas play ed for E
. F., who de nied that it was her 510

voice on the ta

pe. Sosa prese nted no evidenc e reg arding the time or manner in w hich the tape wa s
ma de . T he tr ia l c ourt

e xclu de d th e ta

pe ba se d on la c k of

pr op e r a uth e nti c a tio n a

nd the fa c t th a t it s probative va lue was outwe ighe d by the dang er of

unfair pr ejudice. See Tex. R. Evi d. 403. Rule of E v i dence 901 provides that “[t]he requireme nt of authentication or identification as a

condition prec edent to admissibility is satisfied by evidenc e suff

icient to support
a fi ndin g t hat th e ma tte r i n q ue sti on is w hat it s p ro po ne nt c la ims .” Te x. R. E vid . 9 01 (a ). Sos a argues that the tape could be a uthenticated unde r Rule 901(b)( 5), which pr ovi d es t h at a re corde d voice may be authenticated “by opinion ba sed upon hear ing the voice at anyt i m e under circ umstances connecting it with the alleg ed spea ker.” See Tex. R. Evid. 901(b)( 5). How ever , E .F. d e n i e d t h a tt h e v o i c e o n t h e t a p e w a s h e r s , an d

S o s a p r e s e n t e d

n o e v i d e n c e t o t h e c o n t r a r y. Fur thermore , Sosa produce d no evidenc e as to how, when, or by whom the tape w as made . As the trial court state d in excluding the evide nce, “[ T ] h ere is no offer ing w itness that . . . any body has of fe re d to test if

y as to any

of the c ir c ums tanc e s c on c e rn ingthe makin g of the ta pe , w ho ma de it, when it was made, under what circ umstances it was made, w hether it was ac curately

made, whe ther it wa s piece d toge ther or whether it wa s just one conver sation.” Given the lack of evidenc e that the ta pe wa s in fa c t w hat So sa

c la ime d it

to be , we ho ld tha

t the tr ia l c ourt

a c te d w ith in i ts d isc re tio n in de te rm ini ngthat th e re c or din g ’s a uth e nticit y

ha d n ot b e e n s uf

fi c ie ntl y e sta bli sh e d to a llo w i ts admission into evidence. See Tex. R. Evi d. 901(a)
.

Ev en if the tape had bee n proper ly authentica

ted, the trial c ourt also ruled that the probative va lue of the r ecor ding w as outweigh ed by the dang er of

unfair pr ejudice. See Te x. R. Evid. 403. Allowing the jury to hear a tape rec ording of s o m eone, a lleg edly K.F., y elling at her11

y oungda ug hte r a nd c a lli nghe r d e ro g a tor

y name s, inc lud ingra c ia l sl ur s, pr e se nte d a sig nif ic ant r isk of un fa ir pr e jud ic e and c on fu sio n of iss ue s. Th e pr ob a tiv e va lue of the re c or din g wa s li mit e d, a s it was off ere d in support of S osa’s theory that K.F. was afraid to tell her mother that she had lied a bout the sexual abuse. The trial court ha d alre ady permitted the de fense to ex p l o re this iss ue in other testimony , as both Sosa and his w ife wer e allowed to testify that E.F. f

reque ntly mistreated K.F . by y ellin g at h er and ca lling her names. Thus, e ven if the ta pe had be en prope rly

authenticated, we cannot c onclude that the tr ial court a bused its discretion i n deter mining that its probative va lue was outweig hed by

the risk of unfa ir prejudice
. I n light of the fore g oing, w e hold that the trial c ourt’s ex cl u sion of (1) testimony reg arding prior alleg ations of abuse and (2) the audio tape rec ording did not preve nt Sosa f rom being
c on fr on te d w iththe wi tne sse s a g a ins t hi m in vio la tio n o f t

he Sixth A me ndme nt.
CO NC LU SION We affir m the judgme nt of conviction.

________ _ _ _ _ _ _ _ ____________________________ Diane M. H enson, Jus tice Be fore J ustices Patterson, Pury ear and He nson Affir med Filed: June 10, 2010 Do No t Pu

bli sh