SALVADOR MARIO FIGUEROA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued May 19, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00171-CR
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SALVADOR MARIO FIGUEROA, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause No. F08-56170-Y
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MEMORANDUM OPINION
Before Justices O'Neill, Francis, and Murphy
Opinion By Justice Francis
        A jury convicted Salvador Mario Figueroa of the aggravated sexual assault of a nine-year-old girl and sentenced him to eight years in prison. In two issues, appellant contends the trial court abused its discretion in refusing to allow him to cross-examine the child on a prior false allegation of sexual abuse. We affirm.
        A.E. testified that she and her younger brother were playing hide-and-seek with two boys across the street from her grandmother's house. A. E. was inside a camper counting, while the three boys went to hide. A.E. was leaving the camper to go find the boys when appellant, who was the grandfather of the two boys, pushed her back in, told her to “shush,” put a wet towel over her face, and put his finger in her “private part.” A.E. immediately went home and told her grandmother. That same day, A.E. was examined at Children's Hospital. The exam revealed three abrasions to the inter- vaginal wall and a bruise to the hymen, which was consistent with “penetrating trauma.”
        Two days later, A.E. was interviewed at the Dallas County Child Advocacy Center by forensic investigator Courtney Golden. On direct examination, Golden testified as part of her typical interview, she asks the child “if something like that has ever happened to her before.” On cross- examination, Golden was asked whether she asked A.E. that particular question. Golden said she had asked A.E. if “anything had happened with anyone else,” and A.E. said no. Golden said she did not specifically ask if any other man had touched her, explaining she phrased the question generally, such as “has anything else ever happened to your body.”
        In a hearing outside the jury's presence, defense counsel argued he was entitled to impeach A.E.'s credibility with a prior false allegation of sexual abuse. Specifically, counsel asserted that A.E. had “denied any other allegation, but yet we have evidence that something did happen.” The “allegation” referred to by defense counsel was a statement in a CPS history that A.E.'s eleven-year- old female cousin “got on top of her and move[d] around like a man does.” Defense counsel argued he was entitled, under the Sixth Amendment, to cross-examine A.E. or her mother about the incident. The trial court ruled the evidence inadmissible.
        On appeal, appellant complains the trial court's ruling deprived him of his constitutional right to confrontation and to show bias and motive under Texas Rule of Evidence 404(b). In a sexual assault case, for prior accusations to have probative value in impeaching the witness's credibility, a party must show the accusations were false and similar to the current accusation. See Lopez v. State, 18 S.W.3d 220, 226 (Tex. Crim. App. 2000); Garcia v. State, 228 S.W.3d 703, 705 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd ); Lempar v. State, 191 S.W.3d 230, 239 (Tex.App.-San Antonio 2005, pet. ref'd).         At trial and on appeal, appellant asserts that A.E.'s answer to Golden's question about whether “this” or “anything else had ever happened to your body” was proof that she had made a prior false allegation of sexual abuse. We cannot agree. Appellant did not offer the CPS report or any witness's testimony about the incident at the hearing or during an offer of proof; consequently, our record shows only that a CPS history contained a remark that, two years earlier, A.E.'s eleven- year-old female cousin got on top of her and “move[d] like a man does.”
        Assuming this incident could be characterized as an allegation of sexual abuse as asserted by appellant, the trial court could have believed the incident had no probative value. Specifically, the trial court could have reasonably concluded that (1) A.E. did not comprehend the incident with her cousin in the same context as the allegations in this case and thus was not denying (or even commenting on) the previous incident and (2) the incident was markedly different from an adult man forcibly inserting his finger in A.E.'s vagina. Whether offered under the rules of evidence or under the constitutional right to confrontation, we conclude the trial court did not abuse its discretion by disallowing cross-examination on an incident not shown to be relevant to any issue in the present case. We overrule both issues.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MOLLY FRANCIS
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
090171F.U05