Pedro, Rodriguez, Jr., a/k/a Pete Hernandez a/k/a Pedro Pete Rodriguez a/k/a Scar Face v. The State of Texas--Appeal from 156th District Court of Bee County

NUMBER 13-99-061-CR 
  
 
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

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PEDRO RODRIGUEZ, JR., A/K/A

PETE HERNANDEZ, A/K/A PEDRO

PETE RODRIGUEZ, A/K/A SCAR FACE, Appellant,

v.

THE STATE OF TEXAS, Appellee.

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On appeal from the 156th District Court
of Bee County, Texas.

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O P I N I O N
Before Chief Justice Seerden and Justices Dorsey and Rodriguez
Opinion by Chief Justice Seerden

Pedro Rodriguez, appellant, was indicted for burglary of a habitation with intent to commit indecency with a child. Tex. Pen. Code Ann. 30.02 (d) (Vernon 2000). Appellant pled not guilty and the jury found him guilty of the lesser included offense of criminal trespass. Tex. Pen. Code Ann. 30.05 (a) (Vernon 2000). Appellant then pled true to two enhancement paragraphs and was sentenced to one year of jail and a $4000 fine.

By four issues, appellant contends that: (1) the trial court erred in refusing to allow evidence of the prior sexual history of the child; (2) the prejudicial effect of letters written by appellant to the child outweighed their probative value; (3) comments by the prosecutor during closing argument alluded to the prior sexual history of the child and denied appellant an opportunity to present his case; and (4) the trial court erred in forbidding him to ask prospective jurors during voir dire about whether acquitting the innocent or convicting the guilty is the jury's most important function.

The State has not favored the Court with a response to appellant's complaints.

The evidence at trial showed that the alleged victim, a thirteen year-old female, was asleep in the back bedroom of her mother's house. Two others were also sleeping in the room. One of the others was awakened by the touch of appellant, whom he knew and recognized. He saw appellant sitting on the bed, rubbing the victim's upper leg. The victim awoke, immediately crawled from the bed, and ran into the bathroom. The third occupant of the room corroborated these facts. The facts were related to the victim's mother who testified that appellant did not have permission to enter the home.

By his first and second issues, appellant argues that evidence regarding the victim's prior sexual history was erroneously excluded and that letters written by him to the victim were erroneously admitted.

With regard to the victim's prior sexual history, appellant contends that evidence of the victim's prior sexual relationship with another man should have been admitted. The trial court refused to admit the evidence, ruling that it was neither admissible, pursuant to rule 412 of the Texas Rules of Evidence, nor relevant. Appellant contends that the evidence is relevant to support his theory that someone other than appellant, a specific person with whom the victim is alleged to have had a sexual relationship, was the person who entered the house. Moreover, appellant argues that rule 412 does not preclude the admission of this evidence because this is not a sexual assault, aggravated sexual assault, or attempted sexual assault case. See Tex. R. Evid. 412.

Notwithstanding the application of Rule 412 here, a trial court retains wide discretion to determine the relevance and materiality of evidence proffered by a party. Montgomery v. State, 810 S.W.2d 372, 378 (Tex. Crim. App. 1990) (opinion on reh'g). Absent a showing of abuse of that discretion, the trial court's ruling will be upheld. Rachal v. State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996). Here, the trial court determined, after having been informed of the substance of the evidence and listening to the arguments of counsel, that the evidence was not relevant. The trial court was in an appreciably better position than this court to make that assessment. We will not disturb the trial court's conclusion. The trial court did not abuse its discretion in refusing to admit the evidence. Appellant's first issue is overruled.

With regard to the letters written by appellant which were admitted, the rules of evidence provide that all relevant evidence is admissible if it is material, more probative than prejudicial, and not otherwise barred by another rule. See Tex. R. Evid. 401, 402, 403. Here, the letters were relevant to show that appellant was familiar with the victim and pursuing a relationship of some sort with her. The fact that appellant was tried for burglary with intent to commit indecency makes the letters material to showing that it was more likely than not that appellant intended to touch the victim. There is no rule which precludes admitting this evidence. Accordingly, we hold that the trial court did not abuse its discretion in admitting the letters. Appellant's second issue is overruled.

By his third issue, appellant complains that the court erred in permitting the State to discuss the child's sexual history during closing argument. Our review of the record discloses no objection to that argument. Any error has been waived because that argument is not incurable. Tex. R. App. P. 33.1(a). Appellant's third issue is overruled.

By his fourth issue, appellant argues that the trial court should have permitted him to ask the prospective jurors during voir dire whether they considered it the more important function of a jury to convict the guilty or acquit the innocent.

A trial court retains discretion to "impose reasonable restrictions on the exercise of voir dire examination." Ratliff v. State, 690 S.W.2d 597, 599 (Tex. Crim. App. 1985). Thus, when reviewing a claim regarding a limitation on voir dire examination, we employ an abuse of discretion analysis, focusing on "whether the appellant proffered a proper question concerning a proper area of inquiry." Howard v. State, 941 S.W.2d 102, 108 (Tex. Crim. App. 1996). A proper question is "one which seeks to discover a veniremember's views on an issue applicable to the case." Id. The trial court may, however, restrict the use of confusing or misleading questions, even when those questions might otherwise be proper. Id.

The record indicates that appellant's counsel suggested to the venire that the jury serves two functions: to acquit the innocent and to convict the guilty. He then asked the veniremembers to raise their hands if they agreed that the most important function of the jury is to convict people. The State objected, claiming that defense counsel was attempting to ask "the jury to make a commitment as to whether they're going to be looking for a conviction or looking for an [sic] innocence." The court sustained the objection, but allowed defense counsel to rephrase his question. Counsel then asked the veniremembers to raise their hands if they agreed that the most important function of the jury is to be sure that the innocent do not get convicted. The State again objected and the court again sustained the objection. Counsel then abandoned this line of questioning.

This line of questioning was not proper. The question posed by defense counsel did not seek the veniremembers' views on issues applicable to the case. The question is irrelevant to determining potential bias because both potential answers are equally correct statements of the jury's function. The trial court did not abuse its discretion in disallowing these questions. Appellant's fourth issue is overruled.

The judgment of the trial court is AFFIRMED.

ROBERT J. SEERDEN, Chief Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed

this 20th day of July, 2000.