IN THE TENTH COURT OF APPEALS
No. 10-22-00236-CR
CARLOS CRUZ PADRON, Appellant v.
THE STATE OF TEXAS, Appellee
From the 443rd District Court Ellis County, Texas Trial Court No. 45799CR
MEMORANDUM OPINION
Carlos Cruz Padron was convicted of aggravated sexual assault of a child and
sentenced to life in prison. Because Padron was not harmed if the trial court erred in
admitting extraneous offense evidence and because the trial court did not deny Padron
the right to counsel, the trial court’s judgment is affirmed.
Padron did not contest the sufficiency of the evidence to support his conviction.
Thus, there is no need for us to relate the facts of the case. EXTRANEOUS EVIDENCE
In his first issue, Padron contends the trial court erred in admitting extraneous
evidence after the deadline to provide notice required by article 38.37, section 3 of the
Texas Code of Criminal Procedure had passed. Specifically, Padron contends the notice
given by the State was unreasonable.
In April of 2022, the State filed a notice of intent to use M.P.’s statements, through
various witnesses, that Padron had touched her “no no spot,” meaning her vagina. The
notice alleged that one of the witnesses, the SANE examiner, would place the event at the
park on more than one occasion.
On the morning of trial, over two months later, the State filed an additional notice
of its intent to use another statement by M.P. that on more than one occasion Padron
touched M.P.’s vagina in the bathroom at the place where Padron lived with M.P.’s father.
At a pretrial hearing on the matter, the State explained to the trial court that late on the
Friday afternoon before trial, the prosecutors met with M.P., and M.P. volunteered that
Padron “did this” more than one time. The State further explained that Padron’s counsel
was notified by email “within an hour of learning it before the weekend….” Padron’s
counsel agreed that he received the information late Friday afternoon but did not see the
notice until that morning. He asserted the information was “a complete surprise,” and
he “strongly” objected. Counsel also requested a continuance. After much discussion,
the trial court overruled the objection and denied the motion for continuance.
Assuming without deciding the trial court erred, we conclude any error was
harmless. Error in admitting evidence in violation of the notice provisions of article 38.37
Padron v. State Page 2 is non-constitutional error. See Pena v. State, 554 S.W.3d 242, 248 (Tex. App.—Houston
[14th Dist.] 2018, pet. ref'd); Lara v. State, 513 S.W.3d 135, 142-43 (Tex. App.—Houston
[14th Dist.] 2016, no pet.). Thus, we will not conclude error is harmful unless it had a
substantial and injurious effect or influence in determining the jury's verdict. TEX. R. APP.
P. 44.2(b).
Article 38.37 provides that "[t]he state shall give the defendant notice of the state's
intent to introduce in the case in chief evidence described by Section 1 or 2 not later than
the 30th day before the date of the defendant's trial." TEX. CODE CRIM. PROC. art. 38.37 §
3. 1 Because the purpose of the article 38.37 notice provision is to enable the defendant to
prepare a defense to the extraneous offenses, we consider in the harm analysis whether
the lack of notice surprised the defendant or adversely affected his ability to mount an
effective defense. See Pena v. State, 554 S.W.3d 242, 249 (Tex. App.—Houston [14th Dist.]
2018, pet. ref'd);Villarreal v. State, 470 S.W.3d 168, 176 (Tex. App.—Austin 2015, no pet).
Padron’s counsel admitted at the pretrial hearing that he knew about the abuse
occurring in the park. In fact, the April notice informed counsel of the park abuse and
that the abuse occurred on more than one occasion. Counsel also admitted at the hearing
that he knew from M.P.’s prior testimony the abuse also occurred in the bathroom. 2
Counsel complained that this new information “totally throws off my cross-examination”
which would be based on what M.P. told the Gingerbread House—that Padron touched
1 Sections 1 and 2 pertain to certain offenses covered by article 38.37. Padron was charged and convicted of an offense under section 2.
2 Padron had been tried in April, but the jury deadlocked. M.P. testified at that trial.
Padron v. State Page 3 her—and what M.P. testified to previously—that the abuse also occurred in the
bathroom. Thus, the only new information, was that the bathroom abuse occurred more
than one time. Counsel was already put on notice that the park abuse happened more
than one time. That the bathroom abuse occurred more than once could not have been
all that surprising.
Further, the trial court instructed the jury on extraneous evidence before M.P.
testified and in the court’s charge to the jury. Counsel thoroughly cross-examined M.P.
regarding the inconsistencies in M.P.’s relaying of the offenses and the new information,
and counsel argued the same to the jury. Further, one other victim-witness testified in
the State’s case in chief about Padron inappropriately touching her, kissing her, and
showing her his penis. The witness stated these actions began when the witness was four
years old and continued until she was a teenager.
Considering all the facts and circumstances presented, we cannot say that the
State’s late notice about the bathroom abuse occurring more than one time had a
substantial and injurious effect or influence in determining the jury's verdict.
Accordingly, Padron was not harmed by the trial court’s error, if any, and Padron’s first
issue is overruled.
DEPRIVATION OF COUNSEL
In his second issue, Padron asserts that the trial court deprived Padron of his right
to counsel when the court sustained the State’s objection to Padron’s closing argument.
There are four proper areas of jury argument: (1) a summation of the evidence; (2)
a reasonable deduction drawn from that evidence; (3) an answer to opposing counsel's
Padron v. State Page 4 argument; and (4) a plea for law enforcement. Gonzalez v. State, 616 S.W.3d 585, 594 (Tex.
Crim. App. 2020). We review a trial court's ruling on an objection to jury argument for
an abuse of discretion. Id. A trial court abuses its discretion if it acts arbitrarily or
unreasonably, without reference to any guiding rules or principles. Montgomery v. State,
810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
Although a trial court has broad discretion in controlling the scope of closing
argument, it may not prevent defense counsel from making a point essential to the
defense. Wilson v. State, 473 S.W.3d 889, 902 (Tex. App.—Houston [1st Dist.] 2015, pet.
ref'd). The improper denial of a jury argument may constitute a denial of the right to
counsel, assuming the jury argument is one the defendant is entitled to make. Davis v.
State, 329 S.W.3d 798, 825 (Tex. Crim. App.
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IN THE TENTH COURT OF APPEALS
No. 10-22-00236-CR
CARLOS CRUZ PADRON, Appellant v.
THE STATE OF TEXAS, Appellee
From the 443rd District Court Ellis County, Texas Trial Court No. 45799CR
MEMORANDUM OPINION
Carlos Cruz Padron was convicted of aggravated sexual assault of a child and
sentenced to life in prison. Because Padron was not harmed if the trial court erred in
admitting extraneous offense evidence and because the trial court did not deny Padron
the right to counsel, the trial court’s judgment is affirmed.
Padron did not contest the sufficiency of the evidence to support his conviction.
Thus, there is no need for us to relate the facts of the case. EXTRANEOUS EVIDENCE
In his first issue, Padron contends the trial court erred in admitting extraneous
evidence after the deadline to provide notice required by article 38.37, section 3 of the
Texas Code of Criminal Procedure had passed. Specifically, Padron contends the notice
given by the State was unreasonable.
In April of 2022, the State filed a notice of intent to use M.P.’s statements, through
various witnesses, that Padron had touched her “no no spot,” meaning her vagina. The
notice alleged that one of the witnesses, the SANE examiner, would place the event at the
park on more than one occasion.
On the morning of trial, over two months later, the State filed an additional notice
of its intent to use another statement by M.P. that on more than one occasion Padron
touched M.P.’s vagina in the bathroom at the place where Padron lived with M.P.’s father.
At a pretrial hearing on the matter, the State explained to the trial court that late on the
Friday afternoon before trial, the prosecutors met with M.P., and M.P. volunteered that
Padron “did this” more than one time. The State further explained that Padron’s counsel
was notified by email “within an hour of learning it before the weekend….” Padron’s
counsel agreed that he received the information late Friday afternoon but did not see the
notice until that morning. He asserted the information was “a complete surprise,” and
he “strongly” objected. Counsel also requested a continuance. After much discussion,
the trial court overruled the objection and denied the motion for continuance.
Assuming without deciding the trial court erred, we conclude any error was
harmless. Error in admitting evidence in violation of the notice provisions of article 38.37
Padron v. State Page 2 is non-constitutional error. See Pena v. State, 554 S.W.3d 242, 248 (Tex. App.—Houston
[14th Dist.] 2018, pet. ref'd); Lara v. State, 513 S.W.3d 135, 142-43 (Tex. App.—Houston
[14th Dist.] 2016, no pet.). Thus, we will not conclude error is harmful unless it had a
substantial and injurious effect or influence in determining the jury's verdict. TEX. R. APP.
P. 44.2(b).
Article 38.37 provides that "[t]he state shall give the defendant notice of the state's
intent to introduce in the case in chief evidence described by Section 1 or 2 not later than
the 30th day before the date of the defendant's trial." TEX. CODE CRIM. PROC. art. 38.37 §
3. 1 Because the purpose of the article 38.37 notice provision is to enable the defendant to
prepare a defense to the extraneous offenses, we consider in the harm analysis whether
the lack of notice surprised the defendant or adversely affected his ability to mount an
effective defense. See Pena v. State, 554 S.W.3d 242, 249 (Tex. App.—Houston [14th Dist.]
2018, pet. ref'd);Villarreal v. State, 470 S.W.3d 168, 176 (Tex. App.—Austin 2015, no pet).
Padron’s counsel admitted at the pretrial hearing that he knew about the abuse
occurring in the park. In fact, the April notice informed counsel of the park abuse and
that the abuse occurred on more than one occasion. Counsel also admitted at the hearing
that he knew from M.P.’s prior testimony the abuse also occurred in the bathroom. 2
Counsel complained that this new information “totally throws off my cross-examination”
which would be based on what M.P. told the Gingerbread House—that Padron touched
1 Sections 1 and 2 pertain to certain offenses covered by article 38.37. Padron was charged and convicted of an offense under section 2.
2 Padron had been tried in April, but the jury deadlocked. M.P. testified at that trial.
Padron v. State Page 3 her—and what M.P. testified to previously—that the abuse also occurred in the
bathroom. Thus, the only new information, was that the bathroom abuse occurred more
than one time. Counsel was already put on notice that the park abuse happened more
than one time. That the bathroom abuse occurred more than once could not have been
all that surprising.
Further, the trial court instructed the jury on extraneous evidence before M.P.
testified and in the court’s charge to the jury. Counsel thoroughly cross-examined M.P.
regarding the inconsistencies in M.P.’s relaying of the offenses and the new information,
and counsel argued the same to the jury. Further, one other victim-witness testified in
the State’s case in chief about Padron inappropriately touching her, kissing her, and
showing her his penis. The witness stated these actions began when the witness was four
years old and continued until she was a teenager.
Considering all the facts and circumstances presented, we cannot say that the
State’s late notice about the bathroom abuse occurring more than one time had a
substantial and injurious effect or influence in determining the jury's verdict.
Accordingly, Padron was not harmed by the trial court’s error, if any, and Padron’s first
issue is overruled.
DEPRIVATION OF COUNSEL
In his second issue, Padron asserts that the trial court deprived Padron of his right
to counsel when the court sustained the State’s objection to Padron’s closing argument.
There are four proper areas of jury argument: (1) a summation of the evidence; (2)
a reasonable deduction drawn from that evidence; (3) an answer to opposing counsel's
Padron v. State Page 4 argument; and (4) a plea for law enforcement. Gonzalez v. State, 616 S.W.3d 585, 594 (Tex.
Crim. App. 2020). We review a trial court's ruling on an objection to jury argument for
an abuse of discretion. Id. A trial court abuses its discretion if it acts arbitrarily or
unreasonably, without reference to any guiding rules or principles. Montgomery v. State,
810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
Although a trial court has broad discretion in controlling the scope of closing
argument, it may not prevent defense counsel from making a point essential to the
defense. Wilson v. State, 473 S.W.3d 889, 902 (Tex. App.—Houston [1st Dist.] 2015, pet.
ref'd). The improper denial of a jury argument may constitute a denial of the right to
counsel, assuming the jury argument is one the defendant is entitled to make. Davis v.
State, 329 S.W.3d 798, 825 (Tex. Crim. App. 2010).
Padron’s counsel made the following argument to the jury:
I guess I could be charged with it too because I've always wiped my child that way and my grandchild because that's what a parent does, and you don't think about, am I going to be sexually molested. But, guys, in today’s society and the world around us, maybe its best you don’t keep your—
At this point, the State objected, stating, “That’s totally inappropriate and she
knows that.” The objection was sustained. 3
In this issue, Padron asserts that the State’s objection was made toward counsel’s
3 The State contends the trial court reversed its ruling a few moments later. We do not agree with the State. After the objection was sustained, Padron’s counsel continued, “Okay. You've got to be careful.” The State again objected saying, “Objection, your Honor –(Padron’s counsel talking at the same time, saying “Think about what they're saying.”)—it's inappropriate.” This time, the trial court said, “No, overrule at this – stay general. (emphasis added).” Padron’s counsel then went on to say, without objection from the State, “You've got to be careful about what you heard here today, and what is being told to you versus what you witnessed yourself.” We believe the trial court was overruling the State’s objection to counsel’s statement, “You’ve got to be careful.”
Padron v. State Page 5 argument that an innocent act could be construed as criminal behavior which, as Padron
argues on appeal, is a reasonable deduction of the evidence. It was not. Counsel had
been continually making this same argument without objection. The State did not object
until the next statement where counsel began to warn, “But, guys, in today’s society and
the world around us, maybe its best you don’t keep your—.” (Emphasis added). That
particular statement is not a reasonable deduction from the evidence; neither does it fall
into any other category of proper argument.
Accordingly, the trial court did not abuse its discretion in sustaining the State’s
objection, and thus, did not deny Padron his right to counsel. Padron’s second issue is
overruled.
CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s judgment.
TOM GRAY Chief Justice
Before Chief Justice Gray, Justice Johnson, and Justice Smith Affirmed Opinion delivered and filed May 16, 2024 Do not publish [CRPM]
Padron v. State Page 6