In The
Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-14-00419-CR NO. 09-14-00420-CR NO. 09-14-00421-CR NO. 09-14-00422-CR _________________
GUADENCIO AGUILAR MEJIA, Appellant
V.
STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 9th District Court Montgomery County, Texas Trial Cause No. 14-04-04489 CR (Counts 1, 2, 3, 4) ________________________________________________________________________
MEMORANDUM OPINION
Appellant Guadencio Aguilar Mejia appeals his convictions for the offenses
of sexual assault of a child and indecency with a child by contact. In four points of
error, Mejia challenges his convictions. We affirm.
1 Background
C.W. 1 was born in Honduras. When she was fifteen years old, she moved to
the United States and began living with different relatives, including Mejia, her
uncle. C.W. testified at length regarding the sexual abuse she endured by Mejia
while living with him and her aunt. The jury found Mejia guilty of three counts of
sexual abuse of a child and one count of indecency with a child by sexual contact.
The jury assessed Mejia’s punishment for the sexual assault convictions at
imprisonment for sixteen years for Count 1, seven years for Count 2, and sixteen
years for Count 3. The jury assessed Mejia’s punishment for Count 4, the
indecency with a child by sexual contact conviction, at three years imprisonment.
The trial court ordered the sentences to run consecutively. Mejia appealed the trial
court’s judgment.
Limited Cross-Examination
In his first point of error, Mejia contends the trial court erred when it limited
his cross-examination of C.W. regarding her immigration status. Specifically,
Mejia contends the trial court’s exclusion of this evidence deprived him of his
constitutional right to present a complete defense under the Fourteenth
Amendment. He also contends the trial court’s ruling violated his right to confront 1 To protect the victim’s identity, we use an alias. See McClendon v. State, 643 S.W.2d 936, 936 n. 1 (Tex. Crim. App. [Panel Op.] 1982). 2 witnesses under the Confrontation Clause of the Sixth Amendment to the United
States Constitution and article I, section 10 of the Texas Constitution. Mejia argues
this testimony was necessary to establish C.W.’s motive for fabricating the
allegations against him and to impeach her credibility. The State responds that
Mejia failed to preserve this error for appellate review.
Defense counsel sought to cross-examine C.W. about her immigration
status. During a bench conference, defense counsel informed the trial court that he
would like to question C.W. about her immigration status and the pendency of her
immigration petition. Defense counsel argued the evidence was relevant to show
that C.W. had a “possible motive to lie.” The State responded that it believed C.W.
was in the United States legally and that the questions regarding her citizenship
were not relevant. The trial judge ruled that he would consider defense counsel’s
evidence in camera before allowing the testimony. Defense counsel informed the
court that he had no documentary evidence to support his concerns regarding
C.W.’s citizenship and that he was only relying on things the family had told him.
He admitted that he had been unable to confirm the family’s allegations. The trial
court found the testimony was highly prejudicial and ruled it inadmissible “[a]t this
time[,]” but the court explained that he might change his ruling if “family members
take the stand” and counsel is able to present credible evidence supporting the
3 accusation. The record reflects that defense counsel did not call any family
members to testify about C.W.’s immigration status. And, defense counsel did not
attempt to cross-examine C.W. on this issue again.
As noted above, Mejia complains that the trial court violated his
constitutional right to present a complete defense when it refused to permit him to
cross-examine C.W. on her immigration status. At trial, defense counsel argued
that the evidence of C.W.’s immigration status was relevant to his theory that she
had a “possible motive to lie[,]” but he did not cite to any rules of evidence, cases,
or constitutional provisions to support his contention that the evidence was
admissible. Mejia did not assert that the trial court’s limitation of his cross-
examination of C.W. amounted to a violation of his constitutional right to present a
defense. Because Mejia failed to object to the exclusion of the testimony based on
his constitutional right to present a defense, we conclude Mejia has failed to
preserve this complaint for appellate review. See Broxton v. State, 909 S.W.2d 912,
918 (Tex. Crim. App. 1995) (concluding appellant waived his federal
constitutional due process rights when he failed to lodge an objection at trial);
Wright v. State, 374 S.W.3d 564, 575-76 (Tex. App.—Houston [14th Dist.] 2012,
pet. ref’d) (concluding appellant did not preserve issue for review when appellant
4 failed to specifically assert in the trial court that the evidentiary rulings violated her
constitutional right to present a defense).
Mejia also complains that the trial court violated his constitutional right to
confront witnesses when it refused to permit him to cross-examine C.W. on her
immigration status. A defendant must preserve error in the trial court to argue on
appeal that his right to confront witnesses was violated. Anderson v. State, 301
S.W.3d 276, 280 (Tex. Crim. App. 2009); Deener v. State, 214 S.W.3d 522, 527
(Tex. App.—Dallas 2006, pet. ref’d). To preserve error on Confrontation Clause
grounds, a defendant must make a sufficiently specific objection on that basis.
Reyna v. State, 168 S.W.3d 173, 179-80 (Tex. Crim. App. 2005). Defense counsel
did not argue that the Confrontation Clause demanded that he be given the
opportunity to cross-examine C.W. regarding her immigration status. Defense
counsel stated that the evidence was relevant to C.W.’s “possible motive to lie.”
Rule 611(b) of the Texas Rules of Evidence provides that, “[a] witness may be
cross-examined on any relevant matter, including credibility.” Tex. R. Evid.
611(b). Certainly, evidence of a “motive to lie” could potentially affect a witness’s
credibility; as such, Rule 611(b) could possibly serve as the basis for Mejia’s trial
objection. See id. It is also possible that defense counsel could have been relying
upon the Confrontation Clause in questioning the truthfulness of C.W.’s testimony.
5 See Reyna, 168 S.W.3d at 179. However, at no point in time did defense counsel
clarify or otherwise articulate that he was objecting to the trial court’s ruling
regarding the admissibility of the testimony based upon the Confrontation Clause.
“When a defendant’s objection encompasses complaints under both the Texas
Rules of Evidence and the Confrontation Clause, the objection is not sufficiently
specific to preserve error.” Id. Thus, Mejia failed to clearly articulate his position
regarding the Confrontation Clause to the trial court and deprived the trial court of
the opportunity to rule upon its admissibility based upon Mejia’s rationale. See id.
Because Mejia failed to lodge a specific complaint based on the Confrontation
Clause during the cross-examination of C.W., we conclude he has failed to
preserve his complaint based on the Confrontation Clause for appellate review. See
Anderson, 301 S.W.3d at 280.
Even if Mejia had preserved these issues for review, we do not find the trial
court abused its discretion in excluding this testimony. We review a trial court’s
decision to admit or exclude evidence under an abuse of discretion standard.
Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). An abuse of
discretion occurs when the trial court acts without reference to any guiding rules or
principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).
6 From our reading of the record, it appears that the trial court’s ruling was
based either on the application of the Rules of Evidence or the Confrontation
Clause. See Tex. R. Evid. 401 (defining relevant evidence to include evidence
having any tendency to make a fact of consequence in determining the action more
or less probable than it would be without the evidence), 402 (providing that
irrelevant evidence is not admissible), 403 (allowing for relevant evidence to be
excluded if its probative value is substantially outweighed by a danger of unfair
prejudice, confusion of the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence); Lopez v. State, 18 S.W.3d 220, 222 (Tex. Crim.
App. 2000) (explaining that the trial court maintains broad discretion to impose
reasonable limits on cross-examination and that “[i]n weighing whether evidence
must be admitted under the Confrontation Clause, the trial court should balance the
probative value of the evidence sought to be introduced against the risk its
admission may entail.”). Here, the trial court found the testimony was not relevant.
The court further found that without sufficient substantiation, any testimony
concerning the nature of C.W.’s immigration status would be highly prejudicial,
and the prejudicial nature of the testimony would outweigh any potential
relevance. See Tex. R. Evid. 403; Lopez, 18 S.W.3d at 222. Mejia’s counsel
admitted that he had been unable to verify the claims Mejia’s family told him
7 about C.W.’s immigration status. The trial court informed Mejia’s counsel that he
would reconsider his ruling if those family members testified and provided credible
evidence suggesting an issue with C.W.’s immigration status. However, Mejia did
not present any evidence to substantiate the claims regarding C.W.’s immigration
status, and the questions Mejia sought to ask would constitute nothing more than a
mere fishing expedition with a substantial prejudicial effect. As such, we find no
abuse of discretion in the trial court’s ruling.
We overrule Mejia’s first point of error.
Motion for New Trial Hearing
In his second point of error, Mejia contends the trial court erred in denying
his pro se motion for new trial without first conducting a hearing. According to
Mejia, he filed a timely pro se motion for new trial alleging ineffective assistance
of counsel because his trial counsel failed to inform him of a plea offer and failed
to present expert witness testimony on his behalf. The State responds that Mejia
failed to request a hearing and thus, failed to preserve this issue for review.
A defendant does not have an absolute right to a hearing on a motion for
new trial. Rozell v. State, 176 S.W.3d 228, 230 (Tex. Crim. App. 2005). If a
defendant wants a hearing on a motion for new trial, the defendant must request
one. Id. The “reviewing court does not reach the question of whether a trial court
8 abused its discretion in failing to hold a hearing if no request for a hearing was
presented” to the trial court. Id.
Here, Mejia filed a pro se motion for new trial. Although Mejia now claims
he was denied a hearing on his motion, there is nothing in the record to indicate
that Mejia presented his motion with a request for a hearing. Therefore, any alleged
error in the trial court’s failure to hold a hearing was not preserved for our review.
Id. at 231.
We overrule Mejia’s second point of error.
Violation of the Discovery Order
In his third point of error, Mejia contends the trial court erred in allowing the
State’s DNA expert witness to testify over defense counsel’s objection that the
State violated the trial court’s discovery order in failing to give notice of the
content of its DNA expert’s expected testimony. Mejia contends that he could not
have anticipated the subject and content of the expert witness’s testimony, and the
State acted in bad faith in failing to disclose the information concerning the
witness.
The trial court’s standing discovery order included an order that the State
produce “[a] list of the names, addresses and professions of all expert witnesses the
prosecution intends to call at trial, along with each expert’s qualifications, the
9 subject and a description of his or her contemplated testimony, and his or her
report.” In the State’s original response to discovery, it identified John Jackson as a
“Forensic Scientist[,] DPS-Crime Lab[,] Designated Analyst, Criminalist and/or
Toxicologist and/or Designated Representative and/or Custodian of Records[.]”
Defense counsel also received a copy of Jackson’s DNA report, which was
admitted into evidence, and the file from DPS. In describing the results of two of
the samples tested, Jackson’s DNA report states,
The DNA profile is consistent with a mixture. Guadencio Mejia cannot be excluded as the contributor of the major component in this profile. The probability of selecting an unrelated person at random who could be the source of the major component of this profile is approximately 1 in 2.036 septillion for Caucasians, 1 in 4.456 septillion for Blacks, and 1 in 6.840 sextillion for Hispanics. To a reasonable degree of scientific certainty, Guadencio Mejia is the source of the major component of this profile (excluding identical twins). Due to the low level of data present above our analysis threshold, no comparisons will be made to the minor component.
At trial, defense counsel objected to Jackson’s testimony on the basis that the State
did not notify defense counsel of Jackson’s intent to testify about the degradation
of DNA evidence and the “impact it could have on the existence of other DNA that
might have been there.” Defense counsel argued that the DNA report did not put
him on notice that Jackson would testify as to the “details of how to interpret any
unknown or how to interpret that mixture and what could have happened to the
components of that mixture.” Defense counsel complained that because the State 10 did not give him sufficient notice of the content of Jackson’s testimony, he was
unable to prepare for trial. The State responded that its disclosure in conjunction
with Jackson’s DNA report and the DPS’s file was sufficient to provide defense
counsel with adequate notice of the scope of Jackson’s testimony. The trial court
overruled Mejia’s objection.
On appeal, the State initially argues that the trial court’s standing discovery
order is void as it exceeds the trial court’s authority. The State relies on an
unpublished opinion of the Court of Criminal Appeals in support of its contention.
See generally In re Stormer, No. WR-66865-01, 2007 WL 1783853, at *2-3 (Tex.
Crim. App. June 20, 2007) (orig. proceeding) (per curiam) (not designated for
publication). In Stormer, the Court of Criminal Appeals reviewed an identical
provision to that at issue in this case. See id. at *2. The Court ultimately concluded
that the scope of the provision of the trial court’s order exceeded the authority
granted to the trial court under Texas Code of Criminal Procedure art. 39.14(b)
because that statute requires only the disclosure of the names and addresses of
persons that the party may call to testify and the facts and data that underlie an
expert witness’s opinion. Id.2
2 We note the offenses in this case are alleged to have occurred in 2012. The Legislature amended article 39.14 of the Texas Code of Criminal Procedure in 2013 and 2015. Consequently, the amended version of this statute is not applicable. 11 In direct reply to Mejia’s issue on appeal, the State argues that there is no
evidence that the State actually withheld any evidence in this case and that Mejia
mischaracterized the prosecutor’s actions by claiming the prosecutor somehow
acted in bad faith in responding to discovery. The State contends the trial court did
not abuse its discretion in allowing the evidence admitted.
Generally, a court should exclude evidence willfully withheld from
disclosure in violation of a discovery order. Francis v. State, 428 S.W.3d 850, 854-
55 (Tex. Crim. App. 2014) (quoting Hollowell v. State, 571 S.W.2d 179, 180 (Tex.
Crim. App. 1978)). The Court of Criminal Appeals has explained that the rule
requiring the exclusion of evidence in this context is essentially a “court-fashioned
sanction for prosecutorial misconduct[.]” Id. at 855. As such, the trial court’s
decision to exclude evidence is based on “‘whether the prosecutor acted with the
specific intent to willfully disobey the discovery order[.]’” Id. (quoting Oprean v.
State, 201 S.W.3d 724, 727 (Tex. Crim. App. 2006)). Even a prosecutor’s extreme
negligence or recklessness in failing to comply with a discovery order will not,
alone, justify the sanction. Id. We review a trial court’s ruling to exclude evidence
See Act of May 14, 2013, 83rd Leg., R.S., ch. 49, § 3, 2013 Tex. Sess. Law Serv. 106, 108 (West) (codified at Tex. Code Crim. Proc. Ann. art. 39.14) (“The change in law made by this Act applies to the prosecution of an offense committed on or after the effective date [January 1, 2014] of this Act. The prosecution of an offense committed before the effective date of this Act is covered by the law in effect when the offense was committed . . . .”). 12 for willful prosecutorial defiance of a discovery order for an abuse of discretion,
and will defer to the trial court’s ruling if it falls within the zone of reasonable
disagreement. Id. If there are no findings of fact from the trial court regarding its
determinations of credibility and demeanor, we must assume the trial court
resolved all fact issues in a way that is consistent with its ultimate ruling if the
presumed findings are supported by the record. Id.
The record does not include findings of fact or conclusions of law with
regard to this issue. Thus, we presume that the trial court resolved any issues of
credibility regarding the State’s compliance with the court’s discovery order in the
State’s favor. We note the facts in the record pertaining to the State’s conduct do
not demonstrate a willful violation of the court’s order. During the bench
conference on this issue, the prosecutor explained their office believed the State
had complied with the discovery requirements because it had produced to defense
counsel the entire DPS file, all of the raw data, and Jackson’s DNA report. As
noted earlier, the State identified Jackson as a witness in its original responses to
discovery, including that Jackson is a forensic scientist at the DPS Crime Lab. In
detailing the contents of the State’s file, the State also disclosed that it was in
possession of Jackson’s DNA Lab Report. Defense counsel notified the State of his
experts, including a forensic scientist with expertise in “DNA and the forensic
13 laboratory analysis thereof, including the interpretation of said analyses[.]”
Defense counsel requested the court to order the DPS to turn over all raw data
relating to its analysis of the DNA evidence for his expert to review and allow him
to adequately prepare for trial. The trial court granted this request and defense
counsel admitted to the court that he had received the requested materials.
Mejia complains that the State did not designate Jackson as a DNA expert
witness or even as an expert witness but that the State selectively designated other
witnesses as either “expert” witnesses or “fact and expert” witnesses. Mejia
suggests this is evidence that the State willfully or in bad faith withheld this
information. The record, however, gives no indication that this omission was
anything more than negligence on the part of the State.
Mejia further contends that “the cumulative and systematic withholding of
evidence regarding the prospective experts[’] testimonies shows that the State
acted in bad faith.” However, we first note that there is no indication in the record
that the State withheld “evidence.” A summary of expected testimony is not
“evidence” but rather more akin to argument. See Wheatfall v. State, 882 S.W.2d
829, 839 (Tex. Crim. App. 1994) (“The adversarial system permits such summaries
by one side during closing arguments, but they are arguments and not admitted as
evidence to the jury. Admission of these documents under this theory was clearly
14 error.”); see also Markey v. State, 996 S.W.2d 226, 231 (Tex. App.—Houston
[14th Dist.] 1999, no pet.) (“[A] mere summary of other evidence already before
the jury constitutes no proof of any fact in issue.”). Additionally, that the State did
not provide the defense with a summary of the anticipated content of its witnesses’
testimonies is not evidence of bad faith or willful disobedience. In making the
determination of whether a prosecutor willfully disobeyed a court’s discovery
order, we consider “whether the record indicates that (1) the prosecutor intended to
harm the defense, (2) the prosecutor’s actions were a strategic and purposeful
effort to thwart the defense’s preparation of its case, or (3) the prosecutor
consciously decided to violate the plain directive of the discovery order.” Walker v.
State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). The
fact that the State provided defense counsel with Jackson’s report and the full DPS
file belies the notion that the State intended to harm Mejia’s defense or somehow
thwart his attempt to prepare for trial by denying his counsel a summary of
anticipated testimony stemming from these very items. We have not been cited to
nor have we found any evidence in the record that the prosecutor acted with
specific intent to willfully disobey the discovery order. We also note that defense
counsel’s arguments at trial for suppressing the testimony did not include an
15 allegation that the prosecutor intentionally or willfully withheld the summaries
from defense counsel in bad faith.
Based on the record before us, we conclude there is no evidence that the
prosecutor purposely violated the trial court’s discovery order to harm Mejia in his
trial preparation. See State v. LaRue, 152 S.W.3d 95, 99-100 (Tex. Crim. App.
2004). We conclude the trial court did not abuse its discretion in refusing to
sanction the State by excluding the complained-of testimony. 3 See Oprean, 201
S.W.3d at 726. We overrule Mejia’s third point of error.
In Mejia’s fourth point of error, he contends that the cumulative impact of
the errors he asserted in his first three points was so great that reversal is required.
Because we have overruled Mejia’s first three points of error, his fourth point of
error is without merit and it is overruled. Finding no reversible error, we affirm the
judgment of the trial court.
AFFIRMED.
______________________________ CHARLES KREGER Justice 3 We note that Mejia did not request a continuance at trial based on surprise, so any appellate complaint of surprise is waived. See State v. LaRue, 152 S.W.3d 95, 100 (Tex. Crim. App. 2004); Barnes v. State, 876 S.W.2d 316, 328 (Tex. Crim. App. 1994) (holding that any error by the trial court in allowing a witness to testify over a claim of surprise is made harmless if the defendant failed to object or move for a continuance). 16 Submitted on October 19, 2015 Opinion Delivered June 29, 2016
Before McKeithen, C.J., Kreger and Johnson, JJ.