SERGIO CRUZ, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM and Opinion November 24, 2008
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-01136-CR
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SERGIO CRUZ, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F06-67785-NQ
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OPINION
Before Justices Morris, Whittington, and O'Neill
Opinion By Justice O'Neill
        Appellant Sergio Cruz appeals his conviction for aggravated sexual assault of a child under fourteen years of age. After a jury found appellant guilty, it assessed punishment at twenty-five years' confinement. In two points of error, appellant contends the trial court erred in refusing to admit evidence at both the guilt-innocence and punishment phases of trial that another individual had sexually assaulted the complainant. For the following reasons, we affirm the trial court's judgment.
        The grand jury indicted appellant for aggravated sexual assault of a child. At trial, complainant, who was five-years-old at that time, testified that when she was three-years-old appellant did something “bad” to her. Specifically, complainant testified appellant put his “birdie” and his tongue in her “cocoy.” Using a doll, complainant showed the jury she referred to the female sexual organ as a “cocoy” and the male sexual organ as a “birdie.”
        The State also presented evidence that appellant confessed to the crime. Specifically, he gave a written statement to police in which he admitted performing the acts described by complainant. In his statement, appellant contended that the three-year-old had “touched” him, and wanted to take him to the bedroom. Appellant “allowed” complainant to take him to the bedroom and he “touched” her. He also admitted “touching” the child with his tongue and his penis in the bathtub. He claimed complainant had asked him to do so. In his statement, appellant indicated complainant had learned this behavior because she was sexually abused by her brother N, who would have been six or seven years old at that time.
        Appellant testified at trial that he did not assault the child. He claimed he only confessed to police because they promised him probation if he did so. He indicated that the acts that he said he performed on the child were acts N had told appellant he had done to his sister.
        After the close of evidence and the argument of counsel, appellant filed a motion requesting to reopen the evidence. In the motion, appellant sought to present evidence that one of his witnesses, Y.D. had seen N sexually abusing the complainant. Y.D. was the fourteen-year-old daughter of appellant's girlfriend. She had testified for appellant at trial that she was “friends” with complainant and the child never told her appellant had sexually assaulted her.
        The trial court denied the motion and refused to allow appellant to reopen the evidence to allow Y.D. to testify again. At punishment, appellant again proffered the evidence. According to appellant, the evidence was relevant to sentencing because it showed his credibility. In an offer of proof, Y.D. testified that while she was babysitting complainant and N, she once saw N on top of complainant. Complainant's skirt was up, N's pants were down, and N was “moving” and “stuff.” She also once saw N put his finger in complainant's “cocoy” when they were taking a bath. After hearing the proffer, the trial court concluded the testimony was not relevant to sentencing.
        In his first point of error, appellant contends the trial court erred in refusing to permit him to reopen the evidence at guilt-innocent to allow Y.D. to testify about N's abuse. He relies on article 36.02 of the code of criminal procedure. See, Tex. Code Crim. Proc. Ann. art. 36.02 (Vernon 2007). Under article 36.02, the court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice. Id. Appellant did not request the trial court to reopen until after the arguments of counsel concluded and the jury retired to deliberate. Consequently, appellant's request was not timely. Allman v. State, 164 S.W.3d 717, 721 (Tex. App.-Austin 2005, no pet.)(trial court may not reopen argument after conclusion of oral argument). We resolve the first issue against appellant.
        In his second issue, appellant asserts the trial court erred excluding Y.D.'s testimony in the punishment phase. According to appellant, Y.D.'s testimony was relevant to sentencing because it showed he should not be blamed entirely for trauma the State showed the child had suffered. At trial, however, the only argument raised was the testimony was relevant to appellant's credibility. Because appellant's complaint on appeal does not comport with his argument in the trial court he preserves nothing for appeal. See Gibbs v. State, 819 S.W.2d 821, 837 (Tex. Crim. App. 1992).
        Moreover, we cannot agree the trial court erred in excluding the testimony. A trial court has broad discretion in determining the admissibility of punishment evidence. Davis v. State, 68 S.W.3d 273, 282 (Tex. App.-Dallas 2002, pet. ref'd). The trial court abuses its discretion when it acts without reference to any guiding rules and principles, or acts in a manner that is arbitrary or capricious. Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1991). If the trial court's decision is within the bounds of reasonable disagreement, we will not disturb it on appeal. Id.         After reviewing the record, we cannot conclude the trial court abused its discretion in excluding evidence N. had sexually abused complainant. Any evidence that the child was abused by others is not in any way mitigating and in no way reduces appellant's culpability or moral blameworthiness for his actions. Nor does the evidence explain any of the State's punishment evidence. For example, the State did not seek a greater sentence based on any unique or particularized injury the child suffered that appellant now asserts was caused by someone else. We resolve the second issue against appellant.
        We affirm the trial court's judgment.
 
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
071136F.U05