Alfredo Cabazos Hernandez AKA Alfredo Cavazos Hernandez v. State

• Court: Court of Appeals of Texas
• Decided: July 28, 2005
• Docket: 13-03-00194-CR
• Status: Published

Opinion

                 NUMBER 13-03-194-CR

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG 

ALFREDO CABAZOS HERNANDEZ

A/K/A ALFREDO CAVAZOS HERNANDEZ,                         Appellant,

v.

THE STATE OF TEXAS,                                                                 Appellee.

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

MEMORANDUM OPINION

                       Before Justices Yañez, Rodriguez, and Garza

                            Memorandum Opinion by Justice Yañez

Appellant, Alfredo Hernandez, was indicted and subsequently convicted by a jury of indecency with a child^[1] and attempted aggravated sexual assault.^[2]  After enhancements, his punishment was assessed at two sentences of life imprisonment, to be served concurrently.  We affirm appellant=s convictions.

In five issues, appellant contends on appeal that (1) the trial court erred in allowing a witness to provide an opinion regarding the truthfulness and credibility of the victim; (2) the court improperly allowed leading questions; (3) the evidence is legally and factually insufficient to support his attempted aggravated sexual assault conviction; (4) the evidence is legally and factually insufficient to support his conviction for indecency with a child; and (5) the imposition of two concurrent life sentences is unconstitutional.^[3]

The record contains the trial court=s certification that this is not a plea-bargain case and the defendant has the right of appeal.^[4]

As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it.^[5]   

In appellant=s first issue, he contends the trial court erred in allowing a lay witness to provide an opinion regarding the truthfulness and credibility of the victim.  He specifically refers to testimony of the State=s witness, R.G., the grandmother of the victim, who testified regarding the credibility of the victim.

A trial court=s decision to admit evidence is reviewed for an abuse of discretion.^[6]  It is generally improper for a witness to offer a direct opinion as to the truthfulness of another witness.^[7]

The record reflects that the following exchange occurred between R.G., appellant=s trial counsel, the court, and the prosecutor: 

Re-cross Examination

[Trial Counsel]:  If [the victim] or T. or both of them had asked one or

more people for money, they might get in trouble with their parents for

that, huh?

[R.G.]:  That=s right.  

[Trial Counsel]:  They might get in trouble with you for that.

[R.G.]: That=s right.   Because if I don=t have it, they don=t go and ask

nobody else.

[Trial Counsel]:  Okay.  And if you found out about it, they=dB

[R.G.]:  I=d whip their butt.     

[Trial Counsel]:  You=d whip their butt.

. . . .

Re-direct Examination       

[Prosecutor]:  Okay.  If the boys thought they were in trouble because

they asked somebody for money, you think [the victim] would make up a

story like this?           

[R.G.]:  No.    

[Prosecutor]:  Do you think thatB     

[Trial Counsel]:  Objection.  That=s irrelevant.  That calls for an

opinion as to the credibility of another witness and there=s no predicate

laid for it and I don=t think that=s a proper question and I=d ask the court

to instruct the jury to disregard that.

[Court]:  I=ll allow her to ask it if she lays a proper predicate.

[Prosecutor]:  [R.G.], you know your grandson pretty

well; right?     

[R.G.]:  Yes, ma=am.

[Prosecutor]:  And for the most part, is he truthful?

[R.G.]:  Yeah.

[Trial Counsel]:  Excuse me; who=s the grandson?

[Prosecutor]:  [The victim].

[Prosecutor]:  [The victim] is your grandson; correct?

[R.G.]:  Uh-huh.

[Prosecutor]:  You=re not saying he=s perfect, are you?

[R.G.]:  He=s not perfect, but, you know, he=s all right.  He won=t

hardly lie.

[Prosecutor]:  Okay.  He doesn=t make a habit of lying.

[R.G.]:  No, ma=am.

[Prosecutor]:  Okay.  Would he lie to get himself out of trouble?

[Prosecutor]:  Would he make up this kind of story?

We will disregard a non-constitutional error if, after examining the record as a whole, we are left with the fair assurance that the error did not influence the jury, or influenced the jury only slightly.^[8]  Although appellant specifically contends that R.G.=s testimony effectively bolstered the victim's claims and had an injurious influence on the jury's determination of the verdict, we conclude that the error, if any, in allowing the testimony did not affect any of appellant's substantial rights.^[9]  The State presented testimony from other witnesses to support its allegations against appellant.  For example, M.R., testified that he attended the dance on the night in question and had overheard a conversation while in the restroom that Agrossed him out.@  Additionally, T., a nine-year-old child who allegedly witnessed appellant commit the offenses, testified as to the details of appellant=s inappropriate conduct that occurred in the restroom.  After reviewing the entire record, including the testimony at issue, we are left with the fair assurance that the trial court=s error, if any, did not influence the jury, or influenced the jury only slightly.^[10]  Accordingly, appellant's first issue is overruled. 

In his second issue, appellant contends the trial court abused its discretion by continuously allowing the State to ask leading questions during its examination of T.  As a result, appellant argues that the State=s use of leading questions prejudiced and irreparably harmed appellant.

Rule of evidence 611(c) does not forbid the asking of leading questions; it states that leading questions should not be used on direct examination of a witness except as may be necessary to develop the testimony of the witness.^[11]  The rule contemplates that some leading questions are acceptable at the trial court=s discretion.  Allowing leading questions is a matter within the sound discretion of the trial court.^[12]  Abuse of discretion cannot be shown unless appellant can show that he was unduly prejudiced by virtue of such questions.^[13]   In cases dealing with child witnesses, the rule against leading questions is somewhat relaxed.^[14]   The asking of leading questions will seldom be a ground for reversal, especially where a child is testifying.^[15] 

The record reflects that T. testified regarding two different alleged incidents that had occurred in the restroom between T., appellant, and the victim.  During the State=s direct examination of T., the following exchange occurred between the prosecutor, T., appellant=s trial counsel, and the court:

[Prosecutor]:  Okay. What was he doing with his hands?  Was he

holding his private parts?

[T.]:  Yes, ma=am.

[Prosecutor]:  Okay.  Did he say anything to you when you went to

the bathroom the first time about his private parts?

[T.]:  No, ma=am.

[Prosecutor]:  DidBhe didn=t say anything to you at all?

[T.]:  (shaking head).

[Prosecutor]:  You don=t remember?  You don=t remember him talking

to you about it.

[T.]:  No, ma=am, I don=t remember.

[Prosecutor]:  Okay.  You don=t remember.  Do you remember him

asking you to touch him? 

[Trial Counsel]:  Objection, Your Honor.  The boy has

testified he didn=t remember. [The prosecutor] is purposely leading him

and I ask the Court to ask the jury to disregard that question.

[Court]:  I=m going to sustain the objection.  I=m not going to have

them disregard.  Watch your leading please.

[Prosecutor]:  Well, y=all are standing in the bathroom and you=re

next to [appellant]; right?

[Prosecutor]:  Nothing happened?  He didn=t say anything?  Y=all

just leave?

[T.]:  He didn=t say anything while we were in the bathroom.

[Prosecutor]:  He didn=t say anything while y=all were in the

bathroom?  At all.

[T.]:  No, that I know.  He didn=t say anything to us.

[Prosecutor]:  I can=t hear you, T.

[T.]:  He didn=t say anything to us.

[Prosecutor]:  He didn=t say anything to you.

[Prosecutor]:  Okay.  So what happened?

[T.]:  We were using the bathroom.

[Prosecutor]:  I=m sorry; I can=t hear you, honey.

[T.]:  (Crying).

[Prosecutor]:  It=s okay.  I didn=t mean to make you cry.

The record shows that appellant=s trial counsel=s initial objection was sustained and that the trial court also cautioned the State regarding leading.  Moreover, on this record, it was not an abuse of discretion to allow relaxed questioning of T., who was emotionally distraught and upset during questioning.^[16]  Accordingly, appellant=s second issue is overruled.

In appellant=s third issue, he contends the evidence is legally and factually insufficient to support his conviction for attempted aggravated sexual assault.^[17]  In reviewing appellant=s brief, we note that he has not provided any argument nor has he provided appropriate citations to the record in support of this contention.  We decline to construct appellant=s argument for him.^[18]  Appellant=s third issue is therefore overruled.

In his fourth issue, appellant contends the evidence is legally and factually insufficient to support his conviction for indecency with a child.^[19]   Specifically, appellant argues that the State failed to offer evidence that appellant exposed his genitals with the intent to arouse or satisfy his sexual desire. 

A legal sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution.^[20]  In a jury trial, legal sufficiency is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case.^[21]  We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.^[22]

We also measure the factual sufficiency of the evidence against a hypothetically correct jury charge.^[23]   When the State bears the burden of proof, the proof of guilt is factually insufficient if it is so obviously weak as to indicate that a manifest injustice has occurred or if it is greatly outweighed by contrary proof.^[24]  In determining the factual sufficiency of the elements of the offense, we view all the evidence naturally, not through the prism of the light most favorable to the prosecution.^[25]  However, we approach a factual sufficiency review with appropriate deference to avoid substituting our judgment for that of the factfinder.^[26]  Exercise of our authority to disagree with the factfinder=s determination is appropriate only when the record clearly indicates our intervention is necessary to stop a manifest injustice.^[27]  Every fact need not point directly and independently to the accused=s guilt.^[28]  Additionally, the jury is free to resolve conflicts in testimony.^[29]

The record reflects that T. testified that appellant exposed his penis, grabbed T=s head and forced it down toward appellant=s penis.  The victim also testified that appellant asked whether the two boys wanted to Asuck@ his penis and that appellant grabbed T=s head.  Several witnesses, including R.G., testified that the boys were visibly upset immediately following the two alleged bathroom incidents.  Viewed in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt the Aintent to arouse or gratify@ element of indecency with a child.^[30]  We therefore conclude that the evidence is legally sufficient to support appellant=s conviction for indecency with a child.^[31] 

In reviewing the evidence in a neutral light, the victim and T. testified that appellant exposed his genitals and that appellant asked whether they wanted to touch his penis.  Although there was some conflict in testimony between the boys regarding what exactly had occurred during the two bathroom incidents, the jury was free to resolve conflicts in this testimony.  Further, the jury was free to infer appellant=s mental state from his acts, words, and conduct and from the circumstances surrounding the acts in which he engaged.^[32]  Viewing the evidence in a neutral light, we conclude that the evidence is not too weak to support a finding of guilt beyond a reasonable doubt, and contrary evidence was not so strong that the State could not have proven guilt beyond a reasonable doubt.^[33]          Because the evidence is legally and factually sufficient to support appellant=s conviction for indecency with a child, appellant=s fourth issue is overruled.

In appellant=s fifth issue, he challenges the proportionality of his two concurrent life sentences.  To preserve error for appellate review, the complaining party must make a timely, specific objection.^[34]  Even constitutional errors may be waived by the failure to object at trial.^[35]  Because appellant failed to object in the trial court that his two concurrent life sentences violated his constitutional rights, error is waived.^[36]  Accordingly, appellant=s fifth issue is overruled.

We affirm appellant=s convictions. 

_______________________

LINDA REYNA YAÑEZ,

Justice

Do not publish.                                             

Tex. R. App. P. 47.2(b)

Memorandum Opinion delivered and

filed this the 28th_day of July, 2005.

---

^[1]  See Tex. Pen. Code Ann. _ 21.11(a)(2)(A) (Vernon 2003).

^[2]  See Tex. Pen. Code Ann. __ 22.021(a)(1)(B)(ii), 15.01 (Vernon 2003 and Supp. 2004-05).

^[3]  Although appellant cites seven issues on appeal, for clarity we will address all of his arguments in five issues. 

^[4] See Tex. R. App. P. 25.2(a)(2). 

^[5] See Tex. R. App. P. 47.4. 

^[6] See Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990) (op. on reh=g) (en banc). 

^[7] See Cohn v. State, 849 S.W.2d 817, 819 (Tex. Crim. App. 1993).

^[8]  See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

^[9]  See Tex. R. App. P. 44.2(b). 

^[10]  See id. 

^[11]  See Tex. R. Evid. 611(c).

^[12]  See Wyatt v. State, 23 S.W.3d 18, 28 (Tex. Crim. App. 2000).

^[13]  See id.

^[14]  See Rodriguez v. State, 997 S.W.2d 640, 643 (Tex. App.BCorpus Christi 1999, no pet.).

^[15]  See id. 

^[16]  See Rodriguez, 997 S.W.2d at 643.

^[17]  See Tex. Pen. Code Ann. __ 22.021(a)(1)(B)(ii), 15.01 (Vernon 2003 and Supp. 2004-05).

^[18]  See Tex. R. App. P. 38.1(h).

^[19]  See Tex. Pen. Code Ann. _ 21.11(a)(2)(A) (Vernon 2003).

^[20]  See Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004). 

^[21]  See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). 

^[22]  See Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc).

^[23]  See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref=d). 

^[24]  See Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003). 

^[25]  See Johnson, 23 S.W.3d at 6-7. 

^[26]  See id. 

^[27]  See id. 

^[28]  See Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).

^[29]  See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc).

^[30]  See Johnson, 23 S.W.3d at 7.

^[31]  See id.

^[32]  See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991) (en banc). 

^[33]  See Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004).

^[34]  See Tex. R. App. P. 33.1(a); Hull v. State, 67 S.W.3d 215, 217 (Tex. Crim. App. 2002); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). 

^[35]  See Curry v. State, 910 S.W.2d 490, 497-98 (Tex. Crim. App. 1995) (explaining that a failure to raise an Eighth Amendment objection at trial waives any such claim on appeal). 

^[36]  See Tex. R. App. P. 33.1(a).