February 11, 2015 No. PD-0036-15 _________________________________________________________________________________________________
IN THE
COURT OF CRIMINAL
APPEALS
OF TEXAS
_________________________________________________________________________________________________
ENRIQUE GONZALEZ, JR., Petitioner V. THE STATE OF TEXAS, Respondent _________________________________________________________________________________________________ Petition in Cause No. 12-CRD-36 From the 229th Judicial District Court of Duval County, Texas and
The Court of Appeals for the Fourth District of Texas 04-13-00708-CR _________________________________________________________________________________________________
PETITION FOR DISCRETIONARY REVIEW
_________________________________________________________________________________________________ Charles L. Barrera State Bar No. 01805500 700 E. Second Street Alice, TX 78332 361-664-2153 EMAIL: barreralawfirm@aol.com
Marisol Carvajal-Garcia State Bar No. 24065014 1600 E. Main, Ste. 227 Alice, TX 78332 361-668-4989 EMAIL: marisolcarvajal@hotmail.com
ATTORNEYS FOR PETITIONER ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
INDEX OF AUTHORITIES………………………..……………………………………………………………iii
STATEMENT REGARDING ORAL ARGUMENT…………..……………………………………………2
STATEMENT OF THE CASE………………………………...…………………………………………………2
STATEMENT OF PROCEDURAL HISTORY…………...…………………………………………………2
REASONS FOR REVIEW………………..………………………………………………………………………3
STATEMENT OF THE FACTS…………………………………………………………………………………4
GROUND FOR REVIEW ONE………………………………………………………………………………….4
GROUND FOR REVIEW TWO…………………………………………………………………………………7
SUMMARY…………………………..……………………………………………………………………………….9
PRAYER FOR RELIEF…………………….……………………………………………………………………10
ii INDEX OF AUTHORITIES
CASE LAW:
Blue v. State, 41 S.W.3d 129, (Tex. Crim. App. 2000)…………………………………...……………3, 4, 6 Green v. State, 912 S.W.2d 189 (Tex. Crim. App. 1995)………………………………………………………8 Rabago v. State, 75 S.W.3d 561 (Tex. App. – San Antonio, 2002)………………………………..…………6 Rickels v. State, 108 SW3d 900 (Tex. Crim. App. 2003)………………………………………………..………9 Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983)……………………………………………..3 Webb v. State 409 U.S. 95 (1972)…………………………………………………………………………………6, 7 Williamson v. State, 771 S.W.2d 601 (Tex. App. – Dallas, 1989)…………………………………………….……8 Word v. State, 206 S.W.3d 646 (Tex. Crim. App. 2006)……………………………………….………...……8
STATUTES:
Tex. Code Crim. Proc. Art. 36.27……………………………………………………………………………7
Tex. Pen. Code Section 21.11………………………………………………………………………………..2
RULES:
Tex. R. Crim. Evid. Rule 103(d)…………………………………………………………………………4, 6
CONSTITUTIONAL AMENDMENTS:
U. S. Const. Am. 6…………………………………………………………………………………………………9
iii No. PD-0036-15 _________________________________________________________________________________________________
_________________________________________________________________________________________________
ENRIQUE GONZALEZ, JR., Petitioner V. THE STATE OF TEXAS, Respondent _________________________________________________________________________________________________
Petition in Cause No. 12-CRD-36 From the 229th Judicial District Court of Duval County, Texas and
The Court of Appeals for the Fourth District of Texas 04-13-00708-CR _________________________________________________________________________________________________
_________________________________________________________________________________________________
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS:
ENRIQUE GONZALEZ, JR. petitions the Court to review the judgment affirming his
conviction for two counts of Indecency with a child in Cause No. 12-CRD-36.
1 STATEMENT REGARDING ORAL ARGUMENT
In the event this petition is granted, the Petitioner requests oral argument. Argument
would assist the Court because resolution of the grounds for review depends upon a detailed
exploration of the facts of these cases. Further, oral argument would provide this Court with
an opportunity to question the parties regarding their positions.
STATEMENT OF THE CASE
Appellant was charged by indictment with Indecency with a child in violation of TEX.
PENAL CODE Sec. 21.11. The indictment alleged that Appellant, on or about June 22, 2011, in
Duval County, Texas did then, with the intent to arouse or gratify his sexual desire,
intentionally or knowingly engage in sexual contact with a child younger than 17 years of age,
by touching her genitals and breast.
It was further alleged that Appellant pled guilty to the offense of Aggravated Sexual
Assault on July 9, 1996. In that case, Appellant received a sentence of five (5) years
probation. (C.R. Vol. 1, Pages 90-91). A punishment of life imprisonment was assessed by the
Court because enhancing circumstances were found to be true.
PROCEDURAL HISTORY
The judgment of Petitioner’s conviction was entered on July 1, 2013. Petitioner’s
notice of appeal was timely filed. On December 10, 2014, the Fourth District Court of Appeals
issued an unpublished opinion by Chief Justice Catherine Stone affirming Petitioner’s
conviction. A motion for rehearing was not filed in this Cause.
2 GROUNDS FOR REVIEW
GROUND FOR REVIEW NO. 1
THE APPELLATE COURT ERRED IN FINDING THAT THE TRIAL COURT’S
ADMONISHMENTS OF DEFENSE WITNESSES WERE NOT PROPERLY PRESERVED
BECAUSE NO OBJECTION WAS MADE AT TRIAL.
GROUND FOR REVIEW NO. 2
THE APPELLATE COURT ERRED BY FAILING TO COMPLY WITH THE MANDATORY
PROVISIONS OF ARTICLE 36.27 OF THE TEXAS CODE OF CRIMINAL PROCEDURE
REGARDING A NOTE FROM THE JURY STATING THAT THE JURY WAS
DEADLOCKED BECAUSE OF APPELLANT’S FAILURE TO OBJECT.
REASONS FOR REVIEW
The Fourth Court of Appeals affirmed the conviction in this case on the grounds that
Appellant did not preserve error because of his failure to object at the time of trial. The
Fourth Court of Appeals did not discharge its duty to review and apply the law of Blue v. State,
41 S.W.3d 129 (Tex. Crim. App. 2000) and Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim.
App. 1983) to a fair consideration of all the evidence and the entirety of the comments made
by the trial court.
Likewise, the Fourth Court of Appeals did not fairly evaluate nor comply with the
mandatory provisions of Article 36.27 of the Texas Code of Criminal Procedure regarding a
jury note citing the extent of the division of the juror’s vote and stating that the jury was
deadlocked and further that this error was not preserved because no objection was made at
trial.
3 STATEMENT OF FACTS
On June 22, 2011, Gonzalez visited the Rodriguez household for the purpose of picking
up a canine training collar that he ordered from the internet. Gonzalez and the complaining
witnesses’ grandfather trained their hunting dogs to search for deer and hogs using the
training collar. Complaining witness testified that Gonzalez entered the house and gathered
the training collar and on his way out stopped in her room. Complaining witness also claims
Gonzalez played with her small dog that was sitting on her lap and while doing so allegedly
touched her breast and made contact with her genitals.
Gonzalez was arrest by the San Diego Police Department and was subjected to an
interrogation during which he consistently denied involvement with the complaining witness.
GROUND FOR REVIEW NO. 1, RESTATED
ADMONISHMENTS OF DEFENSE WITNESSES WERE NOT PROPERLY PRESERVED
In Blue v. State, supra, this Court held that pursuant to Texas Rules of Evidence 103(d),
“we are authorized to take notice of fundamental errors affecting substantial rights although
they were not brought to the attention of the court.”
The Appellate Court, in its unpublished opinion, stated that the “trial court admonished
Gonzalez’ wife, who testified as a defense witness because she hesitated before answering
very simple questions that would not be complicated for an average person to answer.” Also,
the record shows that the following conversation transpired while the jury was present and
could hear the conversation amongst the Court, Defense Counsel and this Witness:
The Court: I do not want her to perjure herself. (8 R.R. 30/12). Ms. Garcia: Uh-huh. (8 R.R. 30/13). The Court: So if you want to take her aside and tell her she needs to be honest. (8 R.R. 30/14- 15). Ms. Garcia: Yes. (8 R.R. 30/16). 4 The Court: Because there’s a record here and they will come after her for perjury, I’m sure. (8 R.R. 30/17-18). Ms. Garcia: Yes. (8 R.R. 30/19). The Court: So please…I just don’t want her to go there thinking she needs to protect him thinking that everything is fine. (8 R.R. 30/20-22). Ms. Garcia: Okay. (8 R.R. 30/23). The Court: Because I don’t like that she’s hedging here. (8 R.R. 30/24-25). Ms. Garcia: Do you want me to take her in the jury room? (8 R.R. 31/1-2). The Court: Just over here to the side. Just take her to the side. Just take her to the side. Just be honest. (8 R.R. 31/3-5). Ms. Garcia: Yes, ma’am. (8 R.R. 31/6). (At this point in time, the witness and defense attorneys left the courtroom, but the court and jurors remained). (8 R.R. 31/7-9). Outside of the presence of defense counsel and their witness and in front of the jury, the court made the following comment: The Court: Okay, someone needs to be there so that that’s the only thing that’s discussed. (A deputy left the courtroom and went with the witness and the defense attorneys. When they returned the trial resumed.) 8 R.R. 31/10-15. The Court: I do have to remind you, ma’am that you are under oath. (8 R.R. 31/16-17). The Witness: Okay. (8 R.R. 31/18). The Court: And you are subject to the same penalties of perjury as everybody else that take the stand. Okay? (8 R.R. 31/19-21). The Witness: Okay. (8 R.R. 31/22).
After the witness completed her testimony, the Defense called David Alvarado to the
stand. The following communications occurred between the court and Mr. Alvarado.
The Court: Call your next witness. (8 R.R. 39/11). Ms. Garcia: David Alvarado. (8 R.R. 39/13). The Court: Mr. Alvarado. (8 R.R. 39/13). The Court: Mr. Alvarado stand up here. Is he in handcuffs (speaking to bailiff on the other side of the courtroom)? (8 R.R. 39/16-17). Mr. Alvarado: No. (8 R.R. 39/18). The Court: Okay, I didn’t know why your hands were behind you like that. Okay raise your right-hand. Raise your right hand. Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God? The Witness: Yes, ma’am. (8 R.R. 39/23). The Court: State your name for the record. (8 R.R. 39/24). The Witness: David Alvarado, Jr. (8 R.R. 39/25). The Court: Mr. Alvarado, I do need to tell you as well as all the other witnesses that your testimony is subject to perjury so you are taking an oath to tell the truth so please do. Have a seat. Okay. You are going to have to talk into the mic. (8 R.R. 40/1-5).
In this case, the trial court’s comments rise to the level of creating fundamental error
that affects substantial rights although they were not brought to the attention of the trial
court via objection. The majority opinion of the appellate court completely fails to address 5 this issue in Blue, supra. In Blue, “a plurality of the Texas Court of Criminal Appeals held that
the comments of the trial judge, which tainted appellant’s presumption of innocence in front
of the venire, were fundamental error of constitutional dimension and required no objection.”
Rabago v. State, 75 S.W.3d 561 (Tex. App. – San Antonio, 2002).
Pursuant to Rule 103(d) this Court, even though there was no objection, is authorized
to review the trial judge’s statements because they constituted fundamental error of
constitutional magnitude. In this case, the trial court attempted to rationalize her
admonishments to Defense witnesses Briones and Alvarado by stating that she did admonish
the victim when she was on the stand. However, the admonishments to the victim were kind
and gentle compared to the harsh and accusatory admonishments of Appellant’s witnesses.
(7 R.R. 22/9-25), (7 R.R. 23/1-3), (7 R.R. 101/3-6), (7 R.R. 106/18-20).
Additionally, the United States Supreme Court in Webb v. State held that once a
witness swears to give truthful answers, there are no requirements to warn him not to
commit perjury of conversely to direct him to tell the truth. It would render the sanctity of
the oath quite meaningless to require admonition to adhere to it. Webb v. State, 409 U.S. 95
(1972).
GROUND FOR REVIEW NO. 2, RESTATED
THE APPELLATE COURT ERRED BY FAILING TO COMPLY WITH THE MANDATORY
PROVISIONS OF ARTICLE 36.27 OF THE TEXAS CODE OF CRIMINAL PROCEDURE
The Appellate Court did not address the applicability of Article 36.27 to the facts of the
case now before the Court because it peremptorily ruled that Gonzalez failed to preserve
error because he did not object. Counsel for Gonzalez was never presented with an
opportunity to object because the jury note declaring an 8 to 4 deadlock was never presented 6 to counsel. To prove this point, Gonzalez would show that at 7:45p.m. the trial court
responded to a jury note asking how long Gonzalez was allegedly in the victim’s room. (8 R.R.
206/1-25, 207/16). The note, along with the testimony, was returned to the jury by the
bailiff. The jury resumed deliberations and later the proceedings resumed. (8 R.R. 207/12-
16). Unlike the communication that was transcribed between the trial court, counsel for the
State and counsel for Gonzalez (8 R.R. 202/4 – 8 R.R. 207/15). The record in this case is
completely silent as to what occurred between 7:45 p.m. and 9:50 p.m. This can only mean
that the trial judge filed the note with the clerk’s office and immediately went back on the
record and started instructing the jury via the Allen Charge. Because counsel for Gonzalez
had no idea about the existence of the jury note indicating an 8 to 4 deadlock, Appellant had
no opportunity to file an objection.
It is incumbent upon a trial court to follow what is on its face the simple clear and
direct mandate of the statute to require the written instructions or answer to a jury’s
communication to be read in open court in the presence of the Defendant or his counsel
unless expressly waived by the Defendant, and to require the court reporter to prescribe such
proceedings so that they may become part of the record. Williamson v. State, 771 S.W.2d 601
(Tex. App. – Dallas, 1989). The Appellate Court held that the record presented contained no
reference to the procedures the trial court followed in responding to the jury’s note that they
were deadlocked. It further stated that the record is also silent on when Gonzalez or the State
of Texas became aware that the trial court received the communication from the jury. The
reviewing court went on to say that when the record is silent, a reviewing court must
presume that the trial court’s response to a jury note was in open court and in the Appellant’s
presence, giving him the opportunity to object, citing Green v. State, 912 S.W.2d 189, 192 (Tex.
Crim. App. 1995). It is the “appealing party’s burden to present a record showing properly
preserved reversible error.” Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006). 7 The present case is distinguishable from the aforementioned cases because counsel for
Gonzalez was never presented with a note that the jury was deadlocked.
The Appellate Court erred in its opinion that Appellant had an opportunity to object to
the trial Court’s failure to present the note to them prior to instructing the jury. In
Williamson, the Court noted that there was nothing transcribed by the Court Reporter in the
record about a jury communication and the Court’s response. In the case now before this
Court, the record clearly states the following: “I’ve been advised, uh, by the bailiff that you all
are stating you are deadlocked.” (8 RR 207/19-22). The Court makes no reference to a
written note that had been delivered to her specifically stating the jurors were deadlocked at
8 to 4. In fact, the record is abundantly clear that the communication by the Bailiff stated that
the jury was deadlocked. Appellant cannot object to a note that was never disclosed to
counsel.
In Rickels, this Court considered a prior opinion holding that a Defendant must
complain at trial to the conditions he finds objectionable. Rickels v. State, 108 SW3d 900 (Tex.
Crim. App. 2003). By failing to object to the terms and conditions of probation at trial, a
Defendant affirmatively waives any complaints he may have had. The court went on to say
that the court modified the terms of Rickels probation without a hearing, and Rickels had no
opportunity to object. (Emphasis ours).
We can make a favorable comparison to the case now before this court. Gonzalez had
no opportunity to object to the court’s response to the jury’s 8 to 4 note. The trial court never
disclosed the existence of this note, thus depriving him of his constitutional right to Counsel.
(U. S. Const. Am. 6).
8 SUMMARY
The justices of the Court of Appeals based their decision in this case on the grounds
that Appellant did not preserve error because of his failure to object at the time of trial.
Likewise, the Fourth Court of Appeals did not fairly evaluate nor comply with the mandatory
provisions of Article 36.27 of the Texas Code of Criminal Procedure regarding a jury note
citing the extent of the division of the juror’s vote and stating that the jury was deadlocked
and further that this error was not preserved because no objection was made at trial.
PRAYER FOR RELIEF
For the reasons stated, the Petitioner was denied a fair trial in Cause No. 12-CRD-36.
Therefore, Appellant prays that this Court grand his petition for discretionary review and
upon reviewing the judgment entered below, reverse this Cause and dismiss the prosecution
or remand it for a new trial.
Respectfully submitted,
/s/ Charles L. Barrera
CHARLES L. BARRERA 700 East Second Street Alice, TX 78332 (361) 664-2153 Attorney for Appellant State Bar No. 01805500
/s/ Marisol Carvajal-Garcia MARISOL CARVAJAL-GARCIA 1600 E. Main, Ste. 227 Alice, TX 78332 (361) 668-4989 Attorney for Appellant State Bar No. 24065014
9 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Petition for Discretionary
Review has been served, via email at duval229da@yahoo.com to the Duval District Attorney’s
on the 9th day of February, 2015.
____________________________________
CHARLES L. BARRERA
/s/ Marisol Carvajal-Garcia
________________________________________
MARISOL CARVAJAL-GARCIA
CERTIFICATE OF COMPLIANCE
I hereby certify that this Petition conforms to the requirements of TRAP 9, and
consists of words 2885 per TRAP 9.4(i)(2)(D).
10 Fourth Court of Appeals San Antonio, Texas
MEMORANDUM OPINION No. 04-13-00708-CR
Enrique GONZALEZ, Jr., Appellant
v.
The STATE of Texas, Appellee
From the 229th Judicial District Court, Duval County, Texas Trial Court No. 12-CRD-36 Honorable Ana Lisa Garza, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice Karen Angelini, Justice Rebeca C. Martinez, Justice
Delivered and Filed: December 10, 2014
AFFIRMED
Enrique Gonzalez, Jr. was convicted by a jury of two counts of indecency with a child. On
appeal, Gonzalez raises four issues asserting the trial court erred by: (1) allowing his motion for
new trial alleging juror misconduct to be overruled by operation of law; (2) commenting on the
weight of the evidence; (3) failing to submit a jury note to defense counsel before instructing the
11 jury regarding the note; and (4) using a probationary sentence to enhance punishment in violation
of the prohibition against ex post facto laws.
12 04-13-00708-CR
BACKGROUND
Gonzalez pled not guilty to two counts of indecency with a child. A jury found him guilty
of engaging in sexual contact with C.R., a child younger than 17 years of age, by touching her
genitals and breast. Gonzalez’s sentence was enhanced to life in prison based on a 1996 conviction
of aggravated sexual assault of a child. Gonzalez appeals.
MOTION FOR NEW TRIAL
In his first issue, Gonzalez contends the trial court erred in allowing his motion for new
trial to be overruled by operation of law. In his motion for new trial, Gonzalez asserted that jury
misconduct during deliberations deprived him of a fair and impartial trial.
A. Standard of Review
“It is well established that granting or denying a motion for new trial lies within the trial
court’s discretion.” Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Therefore, the
standard of review for a trial court’s ruling on a motion for new trial is abuse of discretion. State
v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). An appellate court will reverse a trial
court’s ruling only when the decision to grant or deny the new trial was so clearly wrong it was
outside the zone within which reasonable persons might agree. Id. at 695 n. 4. In the absence of
contrary evidence, it is presumed that the trial court properly exercised its discretion. Beard v.
State, 385 S.W.2d 855, 856 (Tex. Crim. App. 1965).
When jurors testify as to jury misconduct, the trial court is the sole judge of the jurors’
credibility. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001), Fairley v. State, 90
S.W.3d 903, 906 (Tex. App.—San Antonio 2002, no pet.). “Where there is conflicting evidence
on an issue of fact as to jury misconduct, the trial judge determines the issue, and there is no abuse
of discretion in overruling the motion for new trial.” Salazar, 38 S.W.3d at 148; Fairley, 90
S.W.3d at 906. -2- 04-13-00708-CR
B. Conflicting Evidence
Gonzalez supported his motion for new trial with two affidavits from jurors who stated that
an unnamed juror made a statement about Gonzalez being listed on the internet as a registered sex
offender. At the hearing on the motion for new trial, one juror, Meliza Kipple, testified on the
stand and in her affidavit that it was a male juror who made the statement. The other affidavit
offered by Gonzalez was from a male juror who stated it was a female juror who made the
statement. The State offered five affidavits from jurors who stated they did not hear this statement.
Gonzalez objected to the admission of the State’s affidavits based on their timeliness.
Gonzalez stated he did not receive copies of the affidavits until the day of the hearing. The State
countered Gonzalez’s objection by showing it just received the affidavits. The record shows that
two of the State’s affidavits were dated August 15, 2013 which was five days prior to the hearing,
and three of the State’s affidavits were dated August 19, 2013 which was only one day prior to the
hearing. The trial court conditionally admitted the affidavits into evidence until it had time to
review the cases presented by Gonzalez, and stated it would withdraw them as exhibits if needed.
The State then requested that the affidavits be read into the record. The trial court allowed the
State to read the affidavits into the record with no objection from Gonzalez. The record does not
contain any order by the trial court withdrawing the affidavits.
Because the trial court conditionally admitted the State’s affidavits and the record does not
establish that the trial court ever withdrew them from evidence, the record contains conflicting
evidence about whether a statement was made that Gonzalez was a registered sex offender.
Because the record contains conflicting evidence, the trial court did not abuse its discretion in
allowing the motion for new trial to be overruled by operation of law. Salazar, 38 S.W.3d at 148;
Fairley, 90 S.W.3d at 906.
-3- 04-13-00708-CR
COMMENTING ON THE WEIGHT OF EVIDENCE
In Gonzalez’s second issue, he contends the trial court commented on the weight of the
evidence, thus depriving him of due process under the Fourteenth Amendment. Specifically,
Gonzalez asserts the trial court’s comments to the State’s witnesses were more respectable and
accommodating than the comments to his witnesses. He maintains that all State’s witnesses were
offered water, tissue, and help by the trial court and were given common courtesies such as being
thanked for their testimony. Gonzalez contends that his witnesses were never offered any of these
courtesies, but rather admonished before the jury about perjuring themselves. Gonzalez maintains
that the trial court admonished each of his witnesses about being under oath and “subject to the
penalties of perjury as everybody else that takes the stand,” while saying nothing about being under
oath or the penalties of perjury to the State’s witnesses.
The State contends Gonzalez did not preserve error since he did not timely object to the
trial court’s comments and actions. Because Gonzalez did not timely object, the State contends
the trial court was not afforded an opportunity to correct any possible error.
A. Preservation of Error
“The purpose of a timely objection is to give the trial judge the opportunity to cure error.”
Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991); In re J.G., 195 S.W.3d 161, 177
(Tex. App.—San Antonio 2006, no pet.). In order for an objection to be considered timely, it must
be made as soon as the grounds for the objection become apparent, i.e., as soon as the defense
knows or should know that an error has occurred. Hollins, 805 S.W.2d at 476. A timely objection
promotes the prevention and correction of errors. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim.
App. 2004). “Because an objection informs the judge and opposing counsel of the potential for
error, an objection conserves judicial resources by prompting the prevention of foreseeable,
harmful events.” Id. In order for an appellant to present a complaint for appellate review, “the -4- 04-13-00708-CR
record must show that the complaint was made to the trial court in a timely request, objection or
motion.” TEX. R. APP. P. 33.1(a)(1).
Here, Gonzalez did not object when the trial court made the admonishments about which
he now complains. The record reflects that Gonzalez had ample opportunity to object during both
of his witnesses’ testimony, but failed to do so.
B. Motion for Mistrial
Although Gonzalez did not timely object at trial, before the defense rested he did file a
motion for mistrial complaining of the trial court’s admonishments given to his witnesses. In his
motion, Gonzalez complained that the trial court inappropriately admonished his witnesses about
telling the truth and the penalties of perjury. He presented case law that discussed how such
admonishments could: (1) diminish the credibility of the defense’s approach to the case; (2) be
calculated to benefit the State or prejudice the Defendant; and (3) imply to the jury the possibility
that the witnesses might commit perjury and therefore it was necessary to warn them not to commit
perjury.
The trial court responded by stating that it did in fact admonish the victim herself when she
got on the stand. The trial court admonished Gonzalez’s wife, who testified as a defense witness,
because she hesitated before answering very simple questions that would not be complicated for
an average person to answer. As to Gonzalez’s last witness, the trial court stated that the
admonishment was given because the trial court did not want the witness to be untruthful in the
event he was upset with Gonzalez for having him subpoenaed to testify. The trial court denied the
request for mistrial, but instructed the jury that statements made by the trial court with reference
to any of the witnesses were not to be construed by the jury as an indication that the trial court
wanted the jury to either convict or acquit the defendant. The trial court instructed the jury that
they were the judges of the facts and of the witnesses and their credibility. -5- 04-13-00708-CR
“A mistrial is a device used to halt trial proceedings when error is so prejudicial that
expenditure of further time and expense would be wasteful and futile.” Ladd v. State, 3 S.W.3d
547, 567 (Tex. Crim. App. 1999). If an impartial verdict cannot be reached, a trial court may
exercise its discretion to declare a mistrial. Sewell v. State, 696 S.W.2d 559, 560 (Tex. Crim. App.
1983). In most cases, any harm can be cured by an instruction to disregard any improper questions
or comments and a mistrial would not be warranted. Ladd, 3 S.W.3d at 567.
Here, the trial court denied the mistrial and instructed the jury not to consider any
statements made by the trial court with reference to any of the witnesses. It must be presumed that
the jury followed this instruction in reaching its verdict. Wesbrook v. State, 29 S.W.3d 103, 116
(Tex. Crim. App. 2000). Because the trial court instructed the jury to not consider its comments,
the trial court did not err in overruling the motion for mistrial.
FAILING TO PRESENT THE JURY’S NOTE TO DEFENSE COUNSEL
Gonzalez contends the trial court failed to comply with the mandatory provisions of article
36.27 of the Texas Code of Criminal Procedure regarding a note from the jury stating the jury was
deadlocked. Article 36.27 provides that a trial court shall respond in writing to a deliberating
jury’s communication. TEX. CODE CRIM. PROC. ANN. art. 36.27 (West 2013). Before answering
a jury’s communication the judge “shall use reasonable diligence to secure the presence of the
defendant and his counsel,” and shall submit to defendant and his counsel the jury’s
communication and the trial court’s proposed response. Id. Gonzalez maintains the trial court
failed to present him with the note so that he could offer an adequate response, and failed to submit
to him the court’s proposed response before giving the response to the jury. The State contends
Gonzalez waived any possible error when he did not make appropriate objections on the record.
The record presented to this court contains no reference to the procedures the trial court
followed in preparing to respond to the jury’s note that they were deadlocked. The record is also -6- 04-13-00708-CR
silent on when Gonzalez or the State became aware that the trial court received the communication
from the jury. When the record is silent, a reviewing court must presume the trial court’s response
to a jury note was in open court and in appellant’s presence, giving him the opportunity to object.
Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995). It is the “appealing parties’ burden
to present a record showing properly preserved, reversible error.” Word v. State, 206 S.W.3d 646,
651-52 (Tex. Crim. App. 2006) (holding appellant failed to preserve error when the record: was
silent on procedures followed by trial court; contained no reference to trial court’s response to jury
communication; did not reflect any objections by appellant; and failed to reveal when appellant
became aware of jury’s communication).
Here, the trial court received a note from the jury indicating they were deadlocked, and
went on the record stating “. . . I’ve been advised, uh, by the bailiff that you all are stating you are
deadlocked.” At this point, it is presumed Gonzalez and his attorneys were in the courtroom and
had the opportunity to object to the trial court’s failure to present the note to them prior to
instructing the jury. Green, 912 S.W.2d at 192. We need not employ a presumption, however,
because at oral argument counsel conceded they were present when the trial court responded to the
jury’s note. When the trial court announced in open court that it was aware of the deadlock and
then proceeded to further instruct the jury with an Allen charge,1 Gonzalez failed to take any steps
to notify the court of his concerns. At no point did Gonzalez ask if the jury had submitted a
question, seek clarification about the court’s decision to provide an Allen charge, or lodge any
objection. A timely objection must be made in order to preserve error. Hollins, 805 S.W.2d at
476. Because no objection was made after the statement regarding the note, Gonzalez did not
preserve this issue for this court to review.
1 Allen v. U.S., 164 U.S. 492 (1896).
-7- 04-13-00708-CR
PROBATIONARY SENTENCE USED TO ENHANCE PUNISHMENT
In his final issue, Gonzalez contends the trial court violated the prohibition against ex post
facto laws when it allowed a prior felony conviction to be used to enhance punishment. Gonzalez
asserts that because he was given probation for his prior conviction, which he successfully
completed, there is no final conviction to enhance his punishment. Gonzalez also contends the
enhancement statute in effect at the time of his prior conviction required two prior felony
convictions to trigger the automatic life enhancement instead of one, which is all the current
enhancement statute requires.
A. Probationary Sentence
Gonzalez argues that his prior conviction should not have been used to enhance his
punishment since it was a probated sentence and not a final conviction. It has long been the general
rule in Texas that a probated sentence is not a final conviction for enhancement purposes unless it
has been revoked. Jordon v. State, 36 S.W.3d 871, 873 (Tex. Crim. App. 2001). However, the
court in Comeaux v. State determined that a “successfully completed and subsequently discharged
‘regular’ community supervision can be used to enhance punishments for later offenses when the
provision permitting enhancement did not exist at the time the ‘regular’ community supervision
was imposed in lieu of incarceration.” 151 S.W.3d 710, 713 (Tex. App.—Beaumont 2004, no
pet.). Furthermore, section 12.42(g)(1) of the Texas Penal Code provides that a defendant has
been “previously convicted” of an offense listed under section 12.42(c)(2)(B), if he either was
adjudged guilty or entered a plea of guilty or nolo contendere in return for a grant of a deferred
adjudication, “regardless of whether the sentence for the offense was ever imposed or whether the
sentence was probated and the defendant was subsequently discharged from community
supervision[.]” TEX. PENAL CODE ANN. § 12.42 (West 2013); see also Ex parte White, 211 S.W.3d
316, 319 (Tex. Crim. App. 2007). Gonzalez’s prior sentence was probated in lieu of incarceration,
-8- and the prior offense is listed under section 12.42(c)(2)(B) of the current
enhancement statute. Therefore, the prior conviction can be used to enhance his current
conviction.
B. Ex Post Facto Violation
A conviction which occurred prior to the enactment of an enhancement statute
that provides for an increased punishment for a subsequent conviction may be used for
enhancement purposes under the statute. Barnes v. State, 70 S.W.3d 294, 302 (Tex.
App.—Fort Worth 2002, pet. ref’d). The use of the prior conviction is not an ex post
facto violation. Id. Both the United States Supreme Court and the Texas Court of
Criminal Appeals have held that enhancement statutes do not violate the prohibition
against ex post facto laws because these statutes penalize the criminal offense being
enhanced rather than the prior offense used for enhancement. McDonald v.
Massachusetts, 180 U.S. 311, 313 (1901); White, 211 S.W.3d at 320. Gonzalez argues
that because the enhancement statute in effect at the time of his first conviction was
amended, the use of the current enhancement statute is an ex post facto violation.
Because the current enhancement statute was used to enhance the punishment of the
current conviction, not the prior conviction, there is no ex post facto violation in this
case. White, 211 S.W.3d at 320.
CONCLUSION
The trial court’s judgment is affirmed.
Catherine Stone, Chief Justice
DO NOT PUBLISH
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Case # PD003615 Case Information Location Court Of Criminal Appeals Date Filed 02/09/2015 11:40:57 PM Case Number PD003615 Case Description Assigned to Judge Attorney Marisol CarvajalGarcia Firm Name Marisol CarvajalGarcia Filed By Marisol CarvajalGarcia Filer Type Not Applicable Fees Convenience Fee $0.00 Total Court Case Fees $0.00 Total Court Filing Fees $0.00 Total Court Service Fees $0.00 Total Filing & Service Fees $0.00 Total Service Tax Fees $0.00 Total Provider Service Fees $0.00 Total Provider Tax Fees $0.00 Grand Total $0.00 Payment Account Name Chase Visa Transaction Amount $0.00 Transaction Response Transaction ID 6718719 Order # 0040824350
Petition for Discretionary Review Filing Type EFileAndServe Filing Code Petition for Discretionary Review Filing Description Reference Number Comments Status Rejected Fees Court Fee $0.00 Service Fee $0.00 https://reviewer.efiletexas.gov/EnvelopeDetails.aspx?envelopeguid=76d4d7471e0249f9ada6dc775ccdb543 1/2 2/11/2015 Envelope Details
Rejection Information Rejection Time Rejection Comment Reason 02/11/2015 The petition for discretionary review does not contain the identity of Judge, Other 04:03:32 Parties and Counsel [Rule 68.4(a)]. You have ten days to file a corrected PM petition. Documents Lead Document PDR Cover Letter Enrique Gonzalez PDF.pdf [Original] Attachments PDR Enrique Gonzalez, Jr. PDF.pdf [Original]
eService Details Name/Email Firm Service Type Status Served Date/Time Opened District Attorney 229th Marisol Carvajal Judicial District EServe Sent Yes Not Opened Garcia duval229da@yahoo.com
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