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

___________________________ No. 02

- 18

- 00517

- CR

__ _________________________

On Appeal from th e 4 32nd Di strict Court Tarrant County, Texas Trial Court No. 1465860D
Before Sudderth, C.J.; Gabriel and Bassel , JJ. Memorandum Opinion by Justice B assel 

### M ARCELINO 

### R AMOS 

### P ABON 

### , Appe llant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION
I. Introduction Appellant Ma r celin o Ramos Pabon appeals his convictions on four co unts of aggravated sexual assault of a child under fourteen years old , one count of inde cency with a child by contact, and one count of indecency with a child by exposure

. See Tex. Penal Code Ann. §§ 2 1 .11(a), 22.021(a)(1)(B), (2)(B)

. In three issues, P a bo n ch allenges the trial court ’ s admissi on of extrane ous
- bad

- act evid ence (Issue 1) , the
trial court ’ s exclusion of the complainant ’ s testimony about her immigration status a t the time o f the outcry and her later obtaining a U

- Visa based on her allegations against him (Issue 3 ) , and the trial co urt ’ s overruling of his shift ing

- the

- burden objection to the State ’ s clo sing ar gument (Issue 2)

. B ecause Pabon forfeited some of
his complaints and the trial court did not otherwise reversibly err, we affirm the trial

cour t ’ s judgm e nt. 1
II. Admission of Evi dence of Pabon ’ s Extrane ou s Bad Ac ts
In his first issue, Pabon complains that the admission of e xtraneous

- bad

- act testimon y d uring t he guilt

- innocence phase constitutes reversible error

. The State argues that Pabon did not pres e r ve this issue

. We agree with the State. To preserve a complaint fo r our review, a party must have presented to the trial court a timely reques t, objection, or m otion stating the specific ground s , if not

1 Pabon do es not challe n ge the sufficienc y of the evidence to support his
c o nvictions

. W e therefo re omit a n initial factual backgrou nd

.3 apparent from the context, for the desired rul ing

. Tex. R. App. P. 33.1 ( a) ( 1); Th omas v. State , 505 S.W .3d 916 , 924 (T ex. Crim. App. 2016 )

. Further, the party must obtain a n express or i mplicit adverse trial

- cou rt ruling or object to the trial court ’ s refusal to
rule

. Tex. R. App. P. 33.1 ( a) ( 2); Ev erit t v. State , 407 S.W.3d 259, 2 62

– 63 (Tex. Crim. App. 20 13) ; Martine z v . State , 17 S.W.3d 677, 686 (Tex. Crim. App. 2000)

. Bef ore trial, Pab on obje cted to the introd uction of the testimony of two

“ extrane ous victims ”

— his daughter and her fri end

— on severa l gr o u nds but did not
mention “ Rule 403 ” or allege that th e extraneous

- ba d

- act evidence ’ s “ probative value [was] substantially o utweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, mis leading the jury, undue delay , or n eedlessly presenting cumulativ e evidence

. ” Tex. R. Evid. 403. The trial court clarified , “ You ’ re

ma king all these objections under 405, 402, 404, 4 01 , ” gave Pabon ample opportunity

to further o bject, and stated for the record , “ The Cour t ha s also conducted a b alancing tes t under 403 and reached the conclu sio n it will be admissible because it is

. . . ve ry proba t ive under

. . . 38.37. ” P a bon did not obje ct to the results of that balancing test

. F urther, Pabon does not provi d e a record r eference to a Rule 403 trial objection to the extrane ous
- bad

- act testi mony in his brief , and o ur review of the record does not indicate that Pabon o bjected under Rule 403 w hen his daughter an d her friend testified du ring the guilt

- innocen ce ph a s e of the trial

. We therefore hold that Pabon forfe ite d his first issue

.4 III. L imitation s on Pabon ’ s Cross

- E xamination and Exclusion of Evidenc e About the Complainant ’ s U
- Visa In h is third issue, Pabon comp lains that the trial court ’ s refu s a l to allow him to quest ion the complainant in the jury ’ s presence a bout her immigration status and her receiving a U

- Visa based on her allegat ions against him “ irreparably deprived ” him of his right to impeach and confront her

. The State a r gues that Pabon did not preserv e this issue

. We ag ree with the State i n part. The evidence shows that i n Jan uary 2005, t he then six

- year

- old complain ant and her mother arrived in the Unit e d States from Honduras and moved in with Pabon, w h o was engaged to the complainant ’ s aunt. The complainant made an outc ry of sexual abuse against Pabon in June 2005 , when she was seven years old. The police and Child Protecti v e Services ( CPS ) were contacted, and C PS interviewed the complainant a d ay aft er the outcry. The CPS investigator warned the detective in charge of the investigation that the comp lainant and her mo ther w ould be returning to Hondura s “ within a certain period of time

. ” The complainant soon saw a sexual abuse n urse e xaminer with the CA RE Team at Cook C h ildren ’ s Hospital, and a written report from that examination was placed in the dete c tive ’ s police file

. Nothing happened on the case for several years . In 201 6, an internal audit in t h e Fort Worth Police Department revealed that the original inv estigating officer had failed to diligently investigat e more th an a thousand cases , including thi s one . The new in ve stigating o ffice r, Detecti ve Pat5 He nz, re viewed the file and spo ke t o witnes ses , including the complainant, who by 2016 was eighteen years old. After re investigating the facts, De tecti ve Henz obtained

two arrest w arrants for Pabon, and Pabon was arreste d on those warrants.
In a v oir dire hearing req u e sted b y Pabon , the parties explored the circumstances of the complainant ’ s r ece iving a U

- Visa and becoming a perman ent resi dent in the intervening years betw een her 2005 outcry and the 2016 reinvestigat ion

o f her allegations against P abon

. Pabon wanted t o discu ss these mat ters before the jury to show the complainant ’ s motive , based on her ob ta i ning her U

- Visa and then permanent re sidenc y as a result of her “ com plaint in this matte r. ” The complainant testifie d at the hearing that she d id not re a l ize th at she and
her mother were u ndocumented when they came to the United Stat es, but they were captured by ICE agents when the y cros sed the river , so she knew somethin g was wrong. In 2009, w hen the complainant w as t en or eleven years old , she and her mother visited the H uman R ights I nitiative for advice on ho w an uncle who had recently come to the United St ates could remain in this county . In that visit, the complainant learned that she was eligible for a U

- Visa ba s ed on her alle g a tions agains t Pa bon

. The organization ’ s lawyers a d vised her that to ob tain the U

- Visa, she neede d “to go ahead and try [t o] file a [ police] report again ” because the case against Pabon was not closed, so she and her family did so in 2009. The complainant admitted th at she was advised to co operate to get her U

- Visa , but she testified that she did not under stand when she receive d it that she could los e it if she did not co operate with6 law enforc ement ; 2 that she did not the n “ know exactly wha t was going on ”

— she just

“ d id what [ she ] was told to do ” ; and that none of her statements to p olice or
prosecu tors were mo tivated by fear of deportation

. She also testified that she had been a permanent resident since 2014, tw o ye ars before the investigat ion reopened.
The trial co urt stated , [ B ] a sed upon what I ’ ve heard, her motivation to go to the human r ights initiative was on the basis that they were trying to help an uncle. Thei r primary motivation was that. Now, t here m ay have been ancillary things discussed, but that ’ s not w hat ’ s clear from the record. Now, I understand that you ’ re makin g an argumen t, and I apologize for interruptin g. You may continue. A fter the trial court ’ s statement , Pabon ’ s defens e counse l argued , So I would say that it is rel evant as to motive. It is a defen sive theory that is allowed to be argued and pres ented to the jury. And I beli eve th at not allowing us to pursue the theory of motive is reversible error because of the fact t h at it goes straight to the theory that the re ason she wanted to continue and pu rsue this offense is to obtain the U [

- V] isa, to o btain residency and ultimately c itizen ship. The court foun d that th e complainant “ indicated ” that when she reported t h e

sexu al abuse at the age of seven, “ s he had no knowled ge of i mmigration issues. That
was not her m otive to make a complaint at all. ” T he trial court and defense counse l engaged in more dialogue, and ultimately the trial court ruled that the d e f ense c ould

2 One requ irement for obtaining a U

- Visa is that a complainant “ must assist law enforcement in the investigati on or prosecution of the crime. ” Di a ne Mickelson, Comment, When the Problem Is the Solution: Evaluating the Intersection Between the U Visa

“ Hel p

fulness ” Requirement and No

- Drop Prosecution Policies , 53 U. Rich. L. Rev. 1455, 1465 (2019) ; see also 8 U.S. C. § 1101(a)(15)(U)( i)(III) ; 8 C. F .R

. § 245.24

.7 not explore the topi c in the jury ’ s prese nce absent “ direct evidence ” of motive : “ The
pu rpose of this cross

- examinat ion is to impeach. A seve n

- year

- old child does not
have the moti vation that you are urging. ” Defense cou nsel at t e mpted to argue after the ruling and restated the ruling but di d n ot further o bjec t to the ruling. Pabon did not raise a ny exp licit Sixth Amendment or Confrontation Clause complaints in the trial court regarding the U

- Visa li ne of inquiry; we the r e fore

o verrule his C onfrontation Clause com plaint s as forfeited

. See Tex. R. App. P.
3 3.1 ( a) ( 1) ; Goll iday v . Stat e , 560 S.W.3d 6 64, 670

– 71 (Tex. Crim. A p p. 2018). Whether Pabon preserved his impeachment complaint under the rules of evidence

— as oppose d t o the C onfrontation Clause

— i s a closer question

. To
preserve error when a trial c ourt ex cludes eviden ce , a party mu st show the s ubstanc e of the excluded evidence by offer of proof unless the substance is apparent from the context of the questions asked

. T ex. R. App. P. 33.2 ; Tex. R. Evid. 103 ( a) ( 2); Holmes
v. State , 323 S.W.3d 163, 16 8 ( Tex. Crim. App. 2 009)

. A party may make an offer o f
pro of in question

- and

- answer form or in the form of a concise st atement by counsel

. Tex. R. Evid. 103 ( b); Holmes , 32 3 S.W.3d at 168

. Pab on que stioned the compla inant outside the jury ’ s presen ce ab out the
ci rcumstances of her obtainin g a U

- Visa. He stated that he wanted to question her in the jury ’ s presence to sh ow that she had motive to pursue her claim aga i n st him to get a U

- Visa and argued that barr ing him from presenting that defensive theory would be

r eversible error

. Th e trial cour t foun d that the complainant did not know anything8 about a U

- Visa when she reported the sexual abuse at seven y ear s old. The trial court
excl uded the evidence presented in the v oir dire hearing and held that Pabon could

not pursue th at line of questi oning ab s ent direct eviden ce . The trial court ’ s statements on the record show that it un d e rstood that Pabon wanted to impeach t he complainant w ith the U

- Visa evi dence. We will therefore reach the merits of Pabon ’ s evi dentiary i mpeachment issue.
We review the exclusion of evid ence for an abuse of discretion, which the record shows only when t h e rul i ng falls outside the zone of reasonableness. Henley v.
State , 493 S.W.3d 7 7, 82

– 83 (T ex. Crim. App. 201 6) ; Merrick v. Sta te , 567 S.W .3 d 359 , 37 5 ( Tex. App.

— For t Worth 2018, pet. ref ’ d

)

. As the Texas Court of Criminal Appeals has explained,
The T e x as Rul e s of Evidence permit the defendant to cross

- examine a witness for his purp orted bias, interest, and motive withou t undue limitation o r arbitrary prohibition. R ule 404(b) permits the defense, as well as the prosecution, to offer evidence of other a c ts of misconduct to establish a person ’ s motive for performing some act

— such as m aking a false allegation against the defendant

. Rule 613(b ) permits a witness to be c ross

- examined on specific instances of conduct when they may establish his specific bia s , self

- int erest, or motive for testifying. Johnson v. State , 490 S.W.3 d 895, 910 (Tex. Crim. App. 2016)

. G e nerally, limiting a defen dan t ’ s r ight to cross

- examine a wit ness is within a trial court ’ s discretion.
Hammer v. State , 296 S.W.3d 555, 561 (Tex. C rim. A pp. 2009). For impeachment evidence to be admissible, the defendant nee ds to establish a “ causal connection or logical re lationship ” b etween the evidence and the witness ’ s alleged bias or motive

.9 J

o hnson v. State , 433 S.W.3d 546, 552 (Tex. Crim. A p p. 201 4) ; Tristan v. State , 393 S.W .3d 806, 810

– 11 (Tex. App.

— Houston [ 1st Dist.] 2012, no pet.)

. The excl uded evidence could ce rtainly be ad missible in a different fac tual scenario, but as the trial cou rt pointed out, the timing of the events control s i t s admis sibility here. Pabon di d not offer any evidence before the jury or tri al c ourt that
in 2005 , getting a U

- Visa was on the then seven

- ye ar

- old complainant ’ s radar when
sh e told Pabon ’ s r elative s , the police, CPS, and the CARE team nurse about the

se x u al abu se Pabon had subject ed h er to
. Mo reover, while the complainant was motiv at ed by the legal advi ce she received regardin g o btaining a U

- Visa to re file a police re p ort of her allegations in 2009 after the case had stalled for several years , s h e obtai n e d her permane nt residency in 2014 . S he therefore was not subject to t he U

Visa r equirement that she cooperate with la w enforcem ent or risk d eportation either
in 2016 w hen the criminal case was reinvestigated and Pabon was arrested or in
2 018 when she te s t ified at tr ial. Thus, Pabon did not show any logical connection betwe en the excluded e vidence and the complainant ’ s motive to lie about his conduct

. See J o hnson , 433 S.W.3d at 552 ; Tristan , 393 S.W .3d at 810

– 11

. Consequently, the trial

cou r t did n ot abuse its dis cretion by excluding the evidence or cutting off Pabon ’ s inq uiry until direct ev idence of the complainant ’ s motive was offered

. 3 S ee Garcia v.

3 We reco gnize that the Texas Court of Criminal A p peals has caut i on ed that the r equirement imposed b y case la w that a proponent show a “ causal connection ” or
“ logical relationship ” betwee n the prop osed im peach me nt evidence and a witness ’ s
“ po t en t ial bias or prejudice ” “ cannot be applied too rig orously ” because it “ would10 undermine [the] cons titut i onal ma ndate

— and Rule 613(b) ’ s implicit assumption

— that a defendant be permitted to explore any plausible basis for w itness bias, whether or not the w i tn e ss is willing to admit to i t. ” Jones v. State , 571 S.W.3d 765, 769 (Tex. Crim. App. 2019) (emph asis added)

. H er e, how ever, Pabon did not invoke either the state or federal constitution in the trial court. Moreover, t he voir dire inquiry demonstrated to the t rial court that a desire for a U

- Visa was not a plausible basis for the seven

- year

old complainant to ac cuse Pabon of sexually ab us ing her when the only evidence showed that she did not know what a U

- Visa was until more than three yea rs after her
o u t c ry , nor , because she became a permanent resident in 2014, w as the U

- Visa a plausible basis for her to co operate in the 2016 re investigatio n of her complaint a gainst Pabon or for her t o testify in 2018

. Given the absenc e of evidence of an y connection b et w een the seven

- year

- old complainant ’ s ou tcry and her learning of, applying for, and receiving a U

- Visa years later, we c annot con clude th at the trial judge abused his discretion by excluding evidence of the U

- Visa and cut ting off the inquir y until and
u n le s s Pabon could offer evidence of such a connection. But e ven if w e were to assume that the trial jud ge did abuse his dis cretion by
e xcluding the U

- Visa evidence and prohibiting the line of questioning, any cross

examinati on of the compla ina nt about the U

- V i sa “ would [, if anything , ] only marginally have increased the damage already inflicted upon her gene ral credibility by
o ther ev idence, ” id. at 771

– 72, such as the ev idence that (1) years after her 2005 o utcry against Pabo n, she accused her uncle of sexu a l a buse but later recanted , only to admit in Pabon ’ s trial that her recant in g itself was a lie and (2) she continued to sp end time with Pabon , e ven with out her mother, after the 2005 outcry until 2015, the year before the c omplaint was re inv estigated and he was arrested

. See id. at 770

– 71 ( holdi ng in assault

– family violence ca se that trial c ourt c ommitted constitutional error by pro hibiting defendant from asking complainant ’ s mother (Grandma) about her knowledge and interes t in pe n ding State

- filed termination case regarding defen dant ’ s and compl ainant ’ s parent al rights to their daug h ter but t hat er ror was harmless given the “ subtle difference ” between defendant ’ s and Grandma ’ s accounts of complainant ’ s conduct , the investiga ting of f icer ’ s tes timony that conflicted with Grandma ’ s statement that defendant “ ransa cked the house ” after as saulting c omplai nant, and the fact that the jury knew that Grandma was complai na nt ’ s mother and the child ’ s grandmother) ; Escobedo v. State , No. 04

- 1 8

- 0 0 712

- CR, 20 19 WL 2518165, at * 5 (Tex. App.

— San Antonio June 19, 201 9, no pet. ) (mem. op., not designa ted for pu blication ) ( assuming trial court abused its discretion by barring defend ant in assault case (Grandma) from questioning complainant about G r and m a ’ s interve nt ion in custody su it for complainant ’ s son, who was also Grandma ’ s grandson , but holding t he error h armless wh en the jury heard that the two women did not get along, that Grandma had reported complainant to C P S , and that Grandma11 S tate , No. 13

- 17

- 00218

- CR, 2019 WL 1388532, at *6 (Tex. App.

— Corpus C h risti

– Edinburg Mar

. 28, 20 19, pet. ref ’ d

) ( “ Garcia ’ s assertion that the family plotted agai nst him so t hat D.C. ’ s father co uld obtain a U [

- V] isa is not supported by any evid ence and [is] only support ed by h ypothetical assertion. ” ). But see Sansom v. St ate , 292 S.W .3d 112, 120

– 21 ( T ex. App

. — Houston [14 th Dist.] 2008, pet. ref ’ d

) (holding trial court harmlessly erred by barring defend ant from question ing estranged wife about h er United States citizensh ip status to show the mo tive of her daughters (t he complain ants ) to lie when the d e f ensive theo ry was premised i n part on the wife ’ s status and the timing of the c riminal alleg a tions in relation to a tele phone conversation between defen d an t and his wife ab out getting a divorce and defendant
ha d told the police that one of the complainan t s had threat e ned to “ call the police and

t ell them [he] touched [her] middle part ” if he divo r ced his wife)

. Even if the trial court had erred, suc h error would be harmless. See Tex. R. App. P. 44.2(b). An eyewitness

— Pabon ’ s grandson

— co rroborated t he co m p lainant ’ s outcry both at the tim e of the out cry and during the trial held more than a decade
l ater , the jury heard two o ther women testif y that Pa bon sexually abused them w hen they were minors, and Pabon otherwise attack ed the co mplainant ’ s cr edibility b y

had custod y of grandson under CPS ’ s safety plan for six mo nths before assault

— “ especially ” beca use “ the a ssau lt had been reported to the police and the phot o graphs of [ complainant ’ s ] injuries ha d been taken . . . months before [ Grandma ’ s ] interve ntion in the custody suit ” ).12 discussing her report ing another man for sexual abuse and her recant ing that
accusation. We therefore over rule Pabon ’ s third issue.
IV. Closing Argument
In his second iss ue, Pabon complains that in the State ’ s f i nal closing argument,

“ [t ]he prosecutor ’ s allusion to a lac k of defense witnesses improper ly shifted the b urden of proof an d constitutes reversible error. ” Within his discussion of the is sue, Pabon also argues tha t t he challenged statement al l u des to his failure to testify. The State contend s that Pabon failed to preserve error . We agre e with the State i n part. In Pab on ’ s closing argument, d efense counsel discussed evidence not presented to the ju ry: testimony o f the complainant ’ s mot h e r, other men who were in the complai nant ’ s life when she was sexuall y abused , Pabon ’ s ex
- wife, t he de tectiv e who origi na lly investi gated the a llegations, and a forensic interviewer to whom the

com pl ainant recanted her allegations o f sexual abuse by a dif f

e rent man ; testimony about why the complainant and her mother never returned to Honduras; and the vide o of t h e com plain an t ’ s CPS int erview reco rded after she made allegations against Pabon. The following t ranspired during the prosecutor ’ s final closing argume nt : [PROSECUTOR: ] You know, after doing this for so long, one thing I ’ ve learned is I know exactly how obviou s someone ’ s guilt is when a Defense attorney spends his closing argument talking about what y ou didn ’ t hear. [ DEF

. COUNSEL] : Objection , Your Honor; sidebar. THE COURT : Sustained.13 [ DEF. COUNSEL]: Ask the jury to dis regard the sideba r . THE COURT: Disregard the last comment. [PROSECUTOR ] : Defense attorney sat up here and talked to you about the wit nesses you didn ’ t he ar from. B u t he didn ’ t say anything about the evidence yo u did hear, because that evid ence is so overw helmingly showing this defenda nt is guilt y, he doesn ’ t want you to think about that. And make no mistake about the fact they called t heir witness. And t hat is an e x ample of how they have got every opportunit y to call whoever they want, ho wever they want. [DEF

. COUNSEL ] : O bjection, Yo ur Honor; s hifting the burden. THE COURT: Overruled. [PROSECUTOR] : He said why didn ’ t we. Why didn ’ t t hey? Look, if that C PS video i s admissibl e as evidence and we could have br ought it, why didn ’ t they? Des pite the fact th at you ’ re not to c onsider your selves whet her it ’ s admissible or not, it ’ s a red herring, just like arguing what you didn ’ t hear rather than what you did h ear. Pa bo n did not object that the prosecut or alluded to his failure to te stify in his own defense. Absent an objection to jury ar gument, nothing is presented for review. Threadgill v. State , 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) ; Cockrell v. Stat e , 933 S.W. 2d 73, 89 (Tex. Crim. App. 1996) ; see also Tex. R. App. P. 33.1(a )

. Consequently , he did not pres e rve that par t of his co mplaint. However, he did14 preserve his complaint that the State ’ s argument impermissibly shifted the burd en of proof. We t h e refore a d dress it.
We review a t rial court ’ s ruling on an objection to improp er jury argument for an abuse of discreti on . Rodriguez v. State , 446 S.W.3d 520, 536 (Tex. App.

— San Antonio 2014, no pet.) (op. on reh ’ g) ; Whitney v. State , 3 96 S.W.3d 696, 7 0 5 ( Tex. App.

— Fort Worth 2013, pet . ref ’ d)

. To be permissible, the State ’ s jury argument must fal l within one of the follow i ng four general areas: (1) summation of the evidence; (2) reasonable deduct ion from the evidence; (3) answer to op posing
counsel ’ s a r g ument; or (4) plea for law enf orcement. Freeman v. State, 340 S.W.3d 717,
72 7 (Tex. Crim. App . 2011); Fel d

er v. State , 8 48 S.W.2d 85, 94

– 95 (Tex. Crim. App. 1992). Based on our review of the enti re closing argument, we hold that the
p rosecutor was re s p o n ding to defen se counsel ’ s argu ment discussing the witnesses and evidence that the State had no t offered in the jury ’ s pr esence . S uch a response is permissible. See Freeman , 340 S.W.3d at 727 ; Felder , 8 48 S.W.2d at 94

– 95 ; Allen v. Stat e , 693 S.W.2d 380 , 3 85 (Tex. Crim. App. 198 4) ( “Clearly the defense attorney was i mplying to the jury that the State had som e evid e nce

— eithe r the stereo i tself or fingerprints taken off the stereo

— that it was keeping from the jury. The State ’ s argument wa s merely a respon s e to defense counsel ’ s ar gument and no more. ” ). W e therefo re hold that the trial court did not abuse its discre t ion by ov e rruling Pabon ’ s objection, and we overrule his second issue.15 V. Conclusion Having held that Pabon forfeited his f irst issue and por t i o n s of his second and
th ird issues and having overruled th e remainder of his second and third issues on t he

mer i ts, we af f irm the trial court ’ s judgment.

/ s/ Dabney Bassel Dabne y Bassel J ustice Do Not Publish Tex. R. App. P. 47.2(b) Delivered: Augus t 29, 2019