JESUS JAVIER SEGOVIA v. THE STATE OF TEXAS (2010)

OPINION

Opinion By Justice Fillmore

Jesus Javier Segovia waived his right to a jury and pleaded nolo contendere to indecency with a child.   The trial court found Segovia guilty, sentenced him to four years' imprisonment, and assessed a $1000 fine.   In one issue, Segovia asserts his constitutional rights to confrontation and cross-examination were violated when the trial court denied his request to question the complainant about an alternate perpetrator theory.   We affirm the trial court's judgment.

Background

Segovia pleaded nolo contendere to indecency with a child.   At trial, the thirteen-year-old complainant testified about the incident and identified Segovia, the complainant's neighbor, as the perpetrator.   Segovia's counsel then questioned the complainant about her interactions with her uncle:

Q: Now how close are you to your Uncle Jaime?

A: I would only see him like four times a week.

Q: Four times a week:

A: Uh-huh.

Q: And how often would you and your Uncle Jaime be in a closed room together?

A: Never.

Q: In fact, you have never been in any type of closed space with Uncle Jaime;  is that right?

A: Well, at my house but my sisters were there.

Q: Okay. But you have never been really alone with Uncle Jaime;  is that right?

A: Yeah.

Q: Okay. And is that at your dad's request that you not be alone with your Uncle Jaime?

[Prosecutor]:  Judge, I'm going to object to this line of questioning.   If he is going where I think he's going that is in violation of 4.12[sic].

The Court:  Violation of what?

[Prosecutor]:  Sexual history violation.   If we are going to hear anything about this Uncle Jaime, I mean, one, I have no knowledge with that of not wanting her to be alone with him.   I think that's just a violation.

[Segovia's Counsel]:  Of her sexual history or what?

[Prosecutor]:  Yes.

[Segovia's Counsel]:  I'm not inquiring about her sexual history.

[Prosecutor]:  If he is asking about her being alone with Uncle Jaime I don't know how that's even relevant.

The Court:  Who's on trial here?

[Segovia's Counsel]:  Her neighbor, Jesus Segovia.

The Court:  So that's what got [sic] to do with Jaime?

[Segovia's Counsel]:  Judge, I believe the evidence will show that Uncle Jaime was alone with her twice before my client came in the room.   He was alone with her in the room for some reason or another.

The Court:  The same day or night?

[Segovia's Counsel]:  The same night.

The Court:  Oh.

[Segovia's Counsel]:  He had entered the room.   Jesus had entered the room and exited and this young lady has never been alone with Uncle Jaime or never been permitted to be alone with Uncle Jaime, then that certainly raises entrance [sic] as to what may have transpired between the two.

The trial court sustained the State's objection.

Segovia's trial counsel then continued to cross-examine the complainant:

Q: Now on this particular night in question did your Uncle Jamie come into the room?

A: My Uncle Jaime never comes in my room.

Q: Did you, in fact, say in your statement that your Uncle Jaime came in?

A: He did, but that is just to turn on the light because my Uncle [Raphael] told Jaime to go check on Jesus because he had went-he was coming in and out of my house.

At the close of evidence, the trial court found Segovia guilty of indecency with a child and this appeal ensued.

Analysis

In one issue, Segovia complains the trial court's refusal to allow him to question the complainant about her interactions with her uncle prevented him from presenting an alternate perpetrator theory and violated his constitutional rights to confrontation and cross-examination.   Specifically, Segovia contends it was clear to the trial court that he was “endeavoring to explore an alternative perpetrator theory by questioning the complainant concerning her relationship with her Uncle Jaime, his activities that night with respect to her and her room, and any restrictions that her family may have placed on contact between her and her uncle.”   The State responds that Segovia's argument at trial does not comport with his argument on appeal and, therefore, appellant waived any error by the trial court in the exclusion of the evidence.   We agree with the State.

To preserve an issue for appellate review, a party must make a timely specific objection or request to the trial court and obtain an adverse ruling.   Tex.R.App. P. 33.1(a);  Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App.2002).   Even constitutional error may be waived by failure to raise the issue at trial.  Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App.1995).   Specifically, a defendant waives his constitutional right to confront witnesses against him if he does not object to the denial of that right at trial.  Reyna v. State, 168 S.W.3d 173, 179 (Tex.Crim.App.2005).   Further, a claim a party was not given a meaningful opportunity to present a defense is waived if not properly preserved in the trial court.  Anderson v. State, 301 S.W.3d 276, 280 (Tex.Crim.App.2009).

The same rationale applies to a proffer of evidence in response to an objection to that evidence.  Reyna, 168 S.W.3d at 179.   Just as a party seeking to exclude evidence must state the basis for his objection, a party seeking to introduce evidence must meet an objection with argument stating the basis for the admission of the evidence.  Id. The proponent of evidence must do everything necessary to bring to the trial court's attention the “evidence rule or statute in question and its precise and proper application to the evidence in question.”  Id. at 177.  “The proponent, if he is the losing party on appeal, must have told the judge why the evidence was admissible.”   Id. Further, the objection or request at trial must comport with the complaint presented on appeal.  Id. at 177 (issue is whether “complaining party on appeal brought to the trial court's attention the very complaint that party is now making on appeal”);  Wilson, 71 S.W.3d at 349.

Here, contrary to Segovia's argument on appeal, the trial court allowed Segovia's counsel to cross-examine the complainant about whether her uncle had been in her room on the night of Segovia's contact with the complainant.   However, when Segovia's counsel asked the complainant why she had never been allowed to be alone with her uncle prior to that night, the State objected on the bases that the question violated rule of evidence 412 by inquiring into the complainant's sexual history and was not relevant.   Segovia did not argue in the trial court that his right to confront and cross-examine the witness against him or to present a complete defense would be violated if he was not allowed to question the complainant about any alleged inappropriate relationship with her uncle.   Rather, Segovia claimed he was not inquiring into the complainant's sexual history and then argued that the complainant's uncle's conduct on the night of the charged incident, a subject on which the trial court allowed Segovia's counsel to cross-examine the complainant, was of interest.

Segovia “did not clearly articulate” to the trial court that evidence about the complainant's prior interactions with her uncle was admissible based on his right to confront the witness or to present a complete defense.   See Reyna, 169 S.W.3d at 179.   Therefore, the trial court “never had the opportunity to rule upon” that specific rationale.   See id.   Because Segovia did not raise in the trial court the argument he now makes on appeal, he forfeited his appellate challenge to the trial court's refusal to allow him to question the victim about any alleged inappropriate relationship with her uncle.   See Anderson, 301 S.W.3d at 280;  Reyna, 168 S.W.3d at 179.

We overrule Segovia's sole issue and affirm the trial court's judgment.

ROBERT M. FILLMORE JUSTICE