Gauna v. State

534 S.W.3d 7
CourtCourt of Appeals of Texas
DecidedFebruary 22, 2017
DocketNo. 04-16-00263-CR
StatusPublished
Cited by12 cases

This text of 534 S.W.3d 7 (Gauna 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
Gauna v. State, 534 S.W.3d 7 (Tex. Ct. App. 2017).

Opinion

MEMORANDUM OPINION

Opinion by:

Irene Rios, Justice

A jury convicted Roberto Gauna of the offense of continuous sexual assault of a child, and based upon the jury’s recommendation, the trial court sentenced Gauna to fifty years’ imprisonment. On appeal, Gauna alleges the trial court erred by failing to exclude testimony from three witnesses in violation of Rule of Evidence 403. Gauna also alleges he received ineffective assistance of trial counsel. The judgment of the trial court is affirmed.

Admissibility op Extraneous Offense Testimony

Gauna challenges the trial court’s admission of testimony from Gauna’s former sister-in-law, Charleigh, and his nieces, IG and MG, regarding extraneous sexual offenses committed against the nieces by Gauna. Prior to the witnesses testifying, the trial court held a hearing outside the [10]*10jury’s presence pursuant to Texas Code of Criminal Procedure article 38.37. Tex, Code Crim. Proc.. Ann. art. 38.37'(West 2015). Following the witnesses’ .hearing testimony, Gauna objected to their testimony based on Texas Rule of Evidence 403, arguing the danger of unfair prejudice outweighed the probative value of the testimony, The trial court overruled Gauna’s objection, but'"limited Charleigh’s testimony to “what she factually observed' and what she did,, without, mentioning .any of the .¡specifics as to what she was told.” Charleigh, IG, and MG then testified before the jury without objection.

Standard of Review

We review the trial court’s decision on the admissibility of evidence under an abuse of discretion standard. Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App, 2016). A trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement, Id. If the trial court’s evidentiary ruling is correct under any applicable theory of law, it will not be disturbed, Id.

To preserve a complaint for appellate review, the complaining party must make a timely objection to the trial court which states the grounds with sufficient specificity to make the trial court aware óf the corriplaint, unless the specific grounds are apparent from thfe context. Tex. R. App. P. 33.1(a)(1). The complaining party must let the trial court know what he wants and why he thinks he is entitled to it, and he must do so clearly enough for the trial court to understand and at a time when the trial court is in a position to do something about it. Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014). Further, a party must object each time the allegedly inadmissible evidence, is offered or obtain a running objection. Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)). “ ‘An error, ..[if any] in the admission of evidence is cured .where the same evidence comes in elsewhere without. objection.’ ” Id. (quoting Valle, 109 S.W.3d at 509).

Application

Generally, an extraneous offense is not admissible to prove a person’s character in order to show the person acted in accordance with that character. Tex. R. Evid. 404(b). However, article 38.37 creates an exception to Rule 404(b) for certain cases, including continuous sexual abuse of a child. Tex. Code Crim. Proc. Ann. art. 38.37, § 2(a)(1)(B), (b) (West Supp. 2016); Hitt v. State, 53 S.W.3d 697, 705 (Tex. App.— Austin 2001, pet. refd). Under section 2 of article 38.37, evidence the defendant committed a separate offense may be admitted at trial for any bearing it has on relevant matters, including the defendant’s character and acts performed in conformity with that character. Tex. Code Crim. Proc. Ann. art. 38.37,- § 2(a)(1)(B), (b). Article 38.37 section 2 supersedes Rule 404 (b). See Hitt, 53 S.W.3d at 705.

Nevertheless, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needless presentation of cumulative evidence. Tex. R. Evid. 403. When extraneous acts are relevant under article 38.37, the trial court must still “conduct a Rule 403 balancing test upon proper objection or request.” Belcher v. State, 474 S.W.3d 840, 847 (Tex. App.—Tyler 2015, no pet.); see Hitt, 53 S.W.3d at 705.

Although Gauna objected to the admission of the extraneous acts testimony on Rule 403 grounds during the article 38.37 hearing, Gauna did not renew his [11]*11objection when the witnesses testified before the jury or obtain a running objection to the testimony. The Court of Criminal ■Appeals has explained that •■.to preserve error a party-must object each time the allegedly inadmissible evidence is offered or obtain a running objection. Lane, 151 S.W.3d at 193. Because Gauna did not do so, he failed to preserve error with regard to his complaint about Charleigh, IG, and MG’s testimonies and has presented nothing for our review. Id.

Issue one is overruled.

Ineffective Assistance of Counsel

In issue two, Gauna contends he was .denied his Sixth Amendment right to effective assistance of counsel. Gauna argues the totality of trial counsel’s representation was objectively deficient and points to three specific instances of alleged deficient representation. Gauna contends trial counsel: (1) failed to make timely confrontation clause objections; (2) opened the door to what would have otherwise been inadmissible opinion testimony; and (3) allowed Gau-na to admit guilt on the record.

To prevail on an ineffective-assistance-of-counsel claim, an appellant must prove, by a preponderance of the evidence that (1) counsel’s performance was deficient, ie., counsel’s assistance fell below' an objective standard of reasonableness, and (2) he was prejudiced by counsel’s deficient performance, ie., a reasonable probability exists that but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Nava v. State, 415 S.W.3d 289, 307 (Tex. Crim. App. 2013).

When evaluating counsel’s effectiveness, we look to the totality of the representation and the particular circumstances of. each case.. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). “It is all too tempting for a defendant to second-guess counsel’s assistance after it has proved unsuccessful,- to conclude that.a particular act or omission of counsel was unreasonably.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Accordingly, we indulge a strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance. Thompson, 9 S.W.3d at 813.

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534 S.W.3d 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gauna-v-state-texapp-2017.