Avilez v. State

333 S.W.3d 661, 2010 WL 3928084
CourtCourt of Appeals of Texas
DecidedMarch 9, 2011
Docket01-07-00591-CR, 01-07-00592-CR
StatusPublished
Cited by49 cases

This text of 333 S.W.3d 661 (Avilez v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Avilez v. State, 333 S.W.3d 661, 2010 WL 3928084 (Tex. Ct. App. 2011).

Opinions

OPINION

MICHAEL MASSENGALE, Justice.

A jury convicted appellant Steven Avilez of stalking (trial court case number 1119152; appellate court case number 01-07-00592-CR) and violation of a protective order (trial court case number 1119154; appellate court case number 01-07-00591-CR). See Tex. Penal Code Ann. §§ 25.07, 42.072 (Vernon 2003 & Supp.2010). The jury sentenced him to prison for three years on each count, with the sentences to run concurrently.

Avilez brings two issues on appeal. He contends that his convictions violate the Double Jeopardy clauses of the Texas and United States Constitutions, but we overrule this issue because the offenses of stalking and violating a protective order each contain unique elements that are not required for conviction of the other offense. Avilez also contends that he is entitled to a new trial because the trial court was biased against him. We decline to reverse on that ground because his complaints relate to the trial court’s exercise of discretion in regulating the conduct of the trial, and he does not allege fundamental trial error implicating constitutional guarantees of due process. Accordingly, we affirm.

FACTUAL BACKGROUND

Complainant Amanda Bucklin dated and lived with appellant Steven Avilez for approximately 18 months. She testified that he became physically and emotionally abusive, and she ended the relationship. Avi-lez was subsequently charged with and [665]*665pleaded guilty to stalking, and a trial court placed him on deferred adjudication. The conditions of his community supervision required that he have no contact with Amanda.

Amanda testified that for a period of time after her relationship with Avilez ended, she abused alcohol and drugs. On occasion she called him and initiated sexual activity. Eventually she obtained a protective order against Avilez. Later she married Zach Bucklin. According to Zach’s and Amanda’s testimony, Avilez began to initiate contact with them a month after them daughter was born. He called them, called their friends and inquired about them, drove past their home, and followed them. They testified that this behavior occurred repeatedly over the course of eight months.

In addition, Amanda testified that she resumed abusing alcohol and spent approximately two months in a rehabilitation facility with her infant daughter. On one occasion, she saw Avilez outside the building looking in. Later, he mentioned to her certain details that he could know only if he had been there, such as the kind of baby carnage she used. Amanda denied initiating any contact with Avilez during this time, except a single phone call that she placed at the request of a police investigator who was trying to apprehend him. She obtained a second protective order, and ultimately Avilez was charged with and convicted of violation of a protective order and stalking.

PROCEDURAL BACKGROUND

Avilez contends that his trial was unfair because the judge was biased against him. Accordingly, we describe in detail the relevant trial proceedings and the trial judge’s conduct that has been challenged on appeal.

Over the course of two days of trial testimony, the court permitted the parties to develop the aforementioned background information about the history of Avilez’s relationship with Amanda, but the trial coui’t repeatedly attempted to narrow the focus of the trial to the specific time period and actions directly relevant to the then-pending charges against Avilez. The trial court admonished many witnesses, including both Amanda and Avilez, to limit their answers to “yes or no” if the question required no more. The trial court also sustained numerous objections that a witness was giving a nonresponsive answer.

The State called nine witnesses, two of whom were the State’s primary witnesses, Amanda and Zach Bucklin. Avilez’s trial counsel objected seven times during Amanda’s initial direct examination, and the trial court sustained four of those objections. Near the end of Amanda’s direct testimony, defense counsel objected for the first time that she was testifying in the form of a narrative, and the trial court instructed the prosecutor to limit the testimony to the form of questions and answers. Then, before Amanda’s cross-examination, the trial court addressed the attorneys outside the presence of the jury. He advised them that he would allow Avi-lez’s attorney to inquire generally into the continuing relationship that Amanda had with Avilez to the extent it was relevant to rebut an element of a charged offense.1

[666]*666However, the trial court also made clear his intention to avoid unnecessary sordid detail.

TRIAL COURT: But the bottom line is, you [the State] did go into their background very extensively. I will let you [defense counsel] explore that to some degree. There is some probative value, I guess, to that; but not to the point where I’ll allow you to go into the details of this or that or the other. I wouldn’t let the State—
[[Image here]]
[S]o if the situation’s where it looks like it’s going beyond what I’ve tried to sort of outline, certainly, you’re welcome to make a record or make a bill, whatever you want if you think I’m out of line. But I’m trying to keep it within those parameters. I want just relevant testimony, and if it’s relevant to the elements of the offense, then that’s one thing. But we don’t need to go into, again, into the sor[did] details of someone’s physical relationship, that’s the best way I can put it.
[[Image here]]
DEFENSE COUNSEL: I think we’re already there. I mean, before we ever picked a jury I figured it was going to be a free-for-all.
TRIAL COURT: Well, it is not going to be a free-for-all.
DEFENSE COUNSEL: As far as relevance is concerned.
TRIAL COURT: Well, that was a very, very severe miscalculation on your part because it is not going to be a free-for-all. And this is basically looking at whether or not during this period of time this Defendant engaged in the stalking of this complainant and whether or not he violated a protective order during that period of time.
Now, as I have said, and I believe the State did as general a broad brush stroke as they could to establish the relationship in the past. But I am not going to let something come in that then opens the door to something else and then we’re here trying a divorce case. I don’t do those. I will not do those. I am praying to God I never have to do one of those. That’s just where we’re going to be.
If you want to establish that she initiated contact with him and so forth, that’s fine. If you want to say they engaged in a physical relationship, that’s fine. But that’s as far as I’m willing to go.

During cross-examination, Avilez’s attorney instructed Amanda to answer his question, and the trial court told him, “Just object and I’ll give the instruction.” When Amanda later gave a nonresponsive answer, the trial court sua sponte instructed her, “If the question calls for a yes or no answer, just answer yes or no. If you can’t answer yes or no, just say I can’t answer it that way.... But please, just answer the questions that are asked and the lawyers will ask other questions.

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Cite This Page — Counsel Stack

Bluebook (online)
333 S.W.3d 661, 2010 WL 3928084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/avilez-v-state-texapp-2011.