Gudino, Luis

• Court: Court of Appeals of Texas
• Decided: March 13, 2015
• Docket: PD-0275-15
• Status: Published

Opinion

PD-0275-15 PD-0275-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 3/12/2015 2:57:46 PM Accepted 3/13/2015 10:13:37 AM ABEL ACOSTA P.D.R. # CLERK

C.O.A. #04-13-00836-CR

TO THE

COURT OF CRIMINAL

APPEALS OF TEXAS

LUIS GUDINO,

Appellant/Petitioner

VS.

THE STATE OF TEXAS,

Appellee

PETITION FOR DISCRETIONARY REVIEW

CONNIE J. KELLEY ATTORNEY FOR APPELLANT 1108 Lavaca #110-221 Austin, Texas 78701 March 13, 2015 State Bar Number 11199600 (512) 445-4504 (512) 478-2318 (fax) warrentucker@grandecom.net IDENTITY OF JUDGES, PARTIES AND COUNSEL PURSUANT TO TEXAS RULES OF APPELLATE PROCEDURE

Party and Appellee’s Counsel: State of Texas Bexar County District Attorney Paul Elizondo Tower 101 W. Nueva, 5th Floor San Antonio, TX 78205

State’s Trial Counsel: Lorina Rummel Assistant District Attorney Paul Elizondo Tower 101 W. Nueva, 5th Floor San Antonio, TX 78205

Party/Defendant: Luis Gudino Texas Department of Criminal Justice – Institutional Division

Defendant’s Trial Counsel: Paul J. Smith Attorney at Law 651 S. Walnut, Ste D-228 New Braunfels, TX 78130 and Loraine Efron Law Office of Loraine Efron 10010 San Pedro Ave. Suite 660 San Antonio, TX 78216

State’s Appellate Counsel: Lauren A. Scott Assistant District Attorney Paul Elizondo Tower 101 W. Nueva, 5th Floor San Antonio, TX 78205

ii (Note: Previous appellate counsel for State was the Honorable Kevin Yeary)

Defendant’s Appellate Counsel: Connie J. Kelley Attorney at Law 1108 Lavaca #110-221 Austin, Texas 78701

The Honorable Ron Rangel presided at trial.

iii TABLE OF CONTENTS

Page

Index of Authorities ..................................................................................................vi

Statement Regarding Oral Argument ........................................................................ 1

Statement of the Case................................................................................................. 1

Statement of Procedural History ................................................................................ 1

Questions for Review ............................................................................................. 1-2

QUESTION FOR REVIEW NO. ONE

WHERE REPEAT INSTANCES OF THE SAME CRIMINAL

MISCONDUCT ARE SUFFICIENTLY DISTINGUISHABLE TO

REQUIRE ELECTION IF REQUESTED, IS THE DEFENDANT

ENTITLED, IN THE ABSENCE OF AN ELECTION BY THE

STATE, TO AN UNANIMITY INSTRUCTION IN THE JURY

CHARGE EVEN THOUGH THE STATE’S EVIDENCE OFFERS A

DETAILED ACCOUNT AS TO ONE SPECIFIC INSTANCE

ONLY, ALONG WITH GENERAL TESTIMONY REGARDING

THE REMAINING INSTANCES?

QUESTION FOR REVIEW NO. TWO

DID THE COURT OF APPEALS MISCONSTRUE APPLICABLE

iv LAW WHEN IT HELD THE ABSENCE OF AN UNANIMITY

TABLE OF CONTENTS (cont.)

INSTRUCTION REGARDING AGREEMENT ON A SINGLE

INCIDENT OF CRIMINAL MISCONDUCT WAN NOT ERROR

BECAUSE “THE RECORD DOES NOT CLEARLY SUPPORT

THE POSSIBILITY THAT THE JURY RENDERED NON-

UNANIMOUS VERDICTS”?

Argument ............................................................................................................... 2-6

Prayer for Relief ........................................................................................................ 6

Certificate of Service ................................................................................................. 7

Certificate of Compliance .......................................................................................... 7

Opinion of the Court of Appeals .................................................................. Appendix

v INDEX OF AUTHORITIES

Cases:

Bates v. State, 305 S.W.2d 366 (Tex. Crim. App. 1957) .......................................... 4

Cosio v. State, 353 S.W.3d 766 (Tex. Crim. App. 2011) ...................................... 3, 5

O’Neal v. State, 746 S.W.2d 769 (Tex. Crim. App. 1988)........................................ 4

Rodriguez v. State, 104 S.W.3d 87 (Tex. Crim. App. 2003)..................................... 4

Statutes and Rules:

Texas Rules of Appellate Procedure, Rule 66.3(b) ..................................................................................................... 3 Rule 66.3(c) ...................................................................................................... 5

vi STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not requested because the issues involved can be adequately

addressed in briefs from the parties.

STATEMENT OF THE CASE

On September 16, 2013, in the 379th District Court of Bexar County, Texas,

Appellant, Luis Gudino, after a plea of not guilty was found guilty of four counts

of aggravated sexual assault of a child by a jury. (R.R. Vol. 6 at 140-141). On

November 8, 2013, punishment was assessed by the court at 25 (twenty-five) years

confinement in the Institutional Division of the Texas Department of Criminal

Justice and a $2,500 fine. (R.R. Vol. 7 at 64-65). No motion for new trial was

filed. Notice of Appeal was filed on November 22, 2013. (C.R. at 237). On June

12, 2014, the undersigned, Connie J. Kelley, was appointed to replace previous

appellate counsel, Ed Shannessy, on appeal.

STATEMENT OF PROCEDURAL HISTORY

The opinion of the Court of Appeals was handed down on February 11,

2015. No motion for rehearing was filed.

1 REQUIRE ELECTION IF REQUESTED, IS THE DEFENDANT

LAW WHEN IT HELD THE ABSENCE OF AN UNANIMITY

ARGUMENT

2 REQUIRE ELECTION IF REQUESTED, IS THE DEFENDANT

Discretionary review should be granted because the Court of Appeals has

decided an important question of state law which has not been, but should be,

settled by this Court. See T.R.A.P. Rule 66.3(b). The question pertains to the

connection between the right to seek election and the entitlement to unanimity

instructions in the jury charge.

In deciding the jury charge issue in Cosio, this Court consulted its election

law cases, stating that the principles involved in unanimity and election overlap in

some respects. Cosio v. State, 353 S.W.3d 766, 773 (Tex. Crim. App. 2011). The

subsequent discussion implies, but does not expressly hold, that whenever the State

could be required to elect the occurrence it will rely on to convict but does not do

so, the defendant will always be entitled to a jury charge that instructs the jury that

it must unanimously agree on a single and discrete incident that would constitute

3 commission of the offense alleged. See Id. at 771 & 773-774. This involves an

important question of state law that has not been, but should be settled by this

Court. See T.R.A.P. Rule 66.3(b).

In the attached opinion, the Fourth Court attempts to distinguish Cosio on

the facts after acknowledging that Cosio’s jury charges and Appellant’s were

similar. See op. at 5. It relies on the fact that the complainant, A.G., did not

describe four specific incidents in detail, but instead gave details of the first

encounter and general testimony thereafter that Appellant continued to have

intercourse with her in the same manner once or twice a week or every other day at

particular locations when she was 10 and 11. See op. at 5-6. Such testimony

would clearly require election upon a proper and timely request under the authority

of Bates v. State, 305 S.W.2d 366, 367-368 (Tex. Crim. App. 1957) and O’Neal v.

State, 746 S.W.769, 771-772 (Tex. Crim. App. 1988). In Rodriguez v. State, a

witness’s testimony that Rodriguez had delivered cocaine to her on the date alleged

in the indictment and “maybe 20 or 30 times” in the nine month period before that

date was sufficiently specific to entitle the defendant to an election by the State.

Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim. App. 2003). This Court

rejected the assertion that it would have been impossible for the State to make an

election in the absence of any testimony distinguishing one incident from another.

4 Id.

Upon discretionary review, this Court should hold that Appellant’s

entitlement to an election had he requested it necessarily demonstrated that he was

entitled to have the jury instructed that in order to return a guilty verdict for any of

the alleged offenses, it had to unanimously agree on which incident of intercourse

it would rely in each case.

Discretionary review should be granted because the Court of Appeals

decided an important question of state law in a way that conflicts with the

applicable decisions of this Court. See T.R.A.P. Rule 66.3(c).

Texas law requires that the jury must reach a unanimous verdict about the

specific crime that the accused committed. Cosio v. State, 353 S.W.3d 766, 771

5 (Tex. Crim. App. 2011). This means the jury must agree on a single and discrete

incident that constitutes commission of the offense alleged. Id. at 771.

Guaranteeing unanimity is ultimately the responsibility of the trial judge. Id. at

776. The judge must submit a charge that “does not allow for the possibility of a

non-unanimous verdict.” Id. The question in determining the existence of charge

error in cases such as Appellant’s is not whether the record clearly supports the

possibility that the jury rendered non-unanimous verdicts, but whether the charge

as submitted would allow for that possibility. See Id. Because the trial court’s

charge did not instruct the jury that for each case it had to unanimously agree on

one incident of criminal conduct based on the evidence, that meets all of the

essential elements of the single charged offense beyond a reasonable doubt, the

charge did allow conviction on less than unanimous verdicts. See Id. The Court of

Appeals used an incorrect standard in determining the charge was not erroneous.

PRAYER FOR RELIEF

Appellant prays that this petition be granted and that upon review, the

judgment of the Court of Appeals be reversed.

Respectfully submitted,

/s/ Connie J. Kelley Connie J. Kelley Attorney for Appellant

6 1108 Lavaca, #110-221 Austin, Texas 78701 (512)445-4504 (512)478-2318 (fax) warrentucker@grandecom.net State Bar No. 11199600

7 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served on

Susan D. Reed, District Attorney, at Paul Elizondo Tower 1, 101 W. Nueva, Ste.

370, San Antonio, Texas 78205 by regular mail on this 12th day of March, 2015.

/s/ Connie J. Kelley Connie J. Kelley

CERTIFICATE OF COMPLIANCE

This is to certify that the foregoing document is in 14 point font, with the

exception of footnotes, which are in 12 point font. The word count of the

foregoing document is 1,112 words, which is in compliance with T.R.A.P. Rule

9.4.

8 APPENDIX OPINION OF THE FOURTH COURT OF APPEALS

9 Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-13-00836-CR

Luis GUDINO, Appellant

v. The The STATE of Texas, Appellee

From the 379th Judicial District Court, Bexar County, Texas Trial Court No. 2010CR8499 Honorable Ron Rangel, Judge Presiding

Opinion by: Rebeca C. Martinez, Justice

Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Patricia O. Alvarez, Justice

Delivered and Filed: February 11, 2015

AFFIRMED

Luis Gudino was convicted by a jury of four counts of aggravated sexual assault of a child

and was sentenced to twenty-five years’ imprisonment. On appeal, Gudino complains of error in

the jury charge and that the trial court erred in excluding testimony from the complainant about

her reputation for truthfulness. We affirm the trial court’s judgment.

BACKGROUND

Gudino was charged with four counts of aggravated assault alleging that he penetrated the

female sexual organ of the complainant, A.G., with his male sexual organ on the following dates: 04-13-00836-CR

(1) on or about the 10th day of December, 2006; (2) on or about the 10th day of December, 2007;

(3) on or about the 10th day of December, 2008; and (4) on or about the 10th day of April, 2009.

After four days of testimony, the jury convicted Gudino on all four counts, and Gudino appeals.

QUESTIONING OF A.G. ON REPUTATION FOR TRUTHFULNESS

In his second issue on appeal, Gudino contends the trial court erred in denying him the

opportunity to elicit testimony from A.G. regarding her own reputation for truthfulness or

untruthfulness in the community. Gudino contends the testimony was admissible under Texas

Rules of Evidence 404, 607, 608, and 609. The State responds that the trial court sustained the

prosecutor’s objections that defense counsel had failed to establish that A.G. was familiar with her

own reputation and that the question was repetitive; however, the trial court permitted defense

counsel to rephrase. A trial court’s ruling on the admissibility of evidence is reviewed under an

abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).

The following is the excerpt of the testimony containing the objection Gudino cites in his

brief and contends the trial court improperly sustained:

Q. Do you have an opinion or do you know your reputation for truthfulness in the community? [Prosecutor]: Judge, I’m not sure how a witness is supposed to know her own reputation. I think it’s an improper question. [Defense counsel]: What is your opinion of your reputation? [Prosecutor]: And it is repetitive. THE COURT: Yeah. I’ll sustain that and I’ll let you rephrase. Q. What is your opinion of your reputation up till the time of June 2nd, 2009? A. I do not understand what you’re trying to say. [Prosecutor]: Judge – Q. I’m sorry? A. I do not understand what you’re trying to say. Q. Up till 2009, you first said that you were an honest person, and I understand that you’ve changed that answer now under oath. Am I hearing that correctly? A. I do not — Q. I’m sorry? A. I don’t understand. -2- 04-13-00836-CR

Q. Let’s do it this way. During these four years or three years — what is it, 2006, 2007, 2009, 2009, how many lies do you recall telling to people? A. I do not know. Q. You do, however, admit that you told lies to people during that period of time; isn’t that correct? A. Yes.

Having reviewed the relevant portion of the record, the record does not establish that the trial court

excluded the testimony as inadmissible under Rule 404, 607, 608, or 609. Moreover, the record

does not reflect that defense counsel argued that the response to the question to which the objection

was made would be admissible under those rules. See Lovill v. State, 319 S.W.3d 687, 691-92

(Tex. Crim. App. 2009) (noting “complaint will not be preserved if the legal basis of the complaint

raised on appeal varies from the complaint made at trial”). Furthermore, the record does not reflect

that the trial court denied Gudino the opportunity to elicit testimony from A.G. regarding her own

reputation for truthfulness or untruthfulness in the community. The trial court simply instructed

defense counsel to rephrase. Defense counsel then elected the manner in which he chose to

rephrase the question in an effort to elicit testimony regarding A.G.’s opinion. Therefore,

assuming Gudino preserved his second issue for this court’s review, the trial court’s ruling was

not an abuse of discretion. Gudino’s second issue is overruled.

JURY CHARGE

In his first and third issues, Gudino contends the trial court erred in the submission of the

jury charge. Gudino first contends the jury charge authorized a non-unanimous verdict as to the

particular incidents of criminal conduct that comprised the charged offenses. Gudino also

contends the trial court erred in failing to include a § 8.07(b) instruction in the jury charge.

Acknowledging that no objection was made with regard to either of these alleged errors, Gudino

further contends that the error resulted in egregious harm.

-3- 04-13-00836-CR

A. Standard of Review

“The purpose of the jury charge is to inform the jury of the applicable law and guide them

in its application to the case.” Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). In

reviewing alleged jury charge error, an appellate court must first determine whether error exists in

the charge. Id. If error exists, the appellate court must then determine whether sufficient harm

was caused by the error to require reversal. Id. at 170-71. When the record contains no objection

to the charge error, the appellant must show “egregious harm” to be entitled to a reversal. Id. at

171.

Egregious harm is a difficult standard to prove. Taylor v. State, 332 S.W.3d 483, 489 (Tex.

Crim. App. 2011). To be entitled to a reversal under an egregious harm standard, the record must

establish that the error was egregious and created such harm that the trial was not fair and impartial.

Cosio v. State, 353 S.W.3d 766, 776-77 (Tex. Crim. App. 2011). In determining whether an

appellant was deprived of a fair and impartial trial, we consider: (1) the entire jury charge; (2) the

state of the evidence, including the contested issues and weight of probative evidence; (3) the

argument of counsel; and (4) any other relevant information revealed by the record of the trial as

a whole. Taylor, 332 S.W.3d at 489.

B. Jury Unanimity

Gudino first contends that the jury charge did not require the jury to unanimously find

which incident of criminal conduct satisfied each of the charged offenses. As previously noted,

Gudino was charged with four counts of aggravated sexual assault alleging that he penetrated

A.G.’s female sexual organ with his male sexual organ on or about four separate dates. At trial,

A.G. testified that the first incident occurred when she was nine years old, and Gudino engaged in

the same sexual act one or two times a week until May of 2009, when a long-time family friend

discovered Gudino hiding in a closet. A.G. testified that Gudino had been attempting to engage in -4- 04-13-00836-CR

the same sexual act before hiding in the closet, and a partially opened condom was found in the

room. A.G.’s brother, Ramiro, called the police after A.G. told Ramiro’s girlfriend about the

sexual misconduct.

The jury charge instructed the jury to find Gudino guilty if it found that he had penetrated

A.G.’s female sexual organ with his male sexual organ on or about each of the four specified dates.

The jury charge also stated, “‘On or about’ means that the law does not require the State to prove

the exact date the alleged offense was committed. You are instructed that the time of the alleged

offense must be some date anterior to the presentment of the indictment. The indictment in this

case was presented on August 25, 2010.”

“Texas law requires that a jury reach a unanimous verdict about the specific crime that the

defendant committed. This means that the jury must ‘agree upon a single and discrete incident

that would constitute the commission of the offense alleged.’” Cosio, 353 S.W.3d at 771 (quoting

Stuhler v. State, 218 S.W.3d 706, 717 (Tex. Crim. App. 2007)). Non-unanimity may result “when

the State charges one offense and presents evidence that the defendant committed the charged

offense on multiple but separate occasions.” Id. at 772. “Each of the multiple incidents

individually establishes a different offense or unit of prosecution.” Id. “The judge’s charge, to

ensure unanimity, would need to instruct the jury that its verdict must be unanimous as to a single

offense or unit of prosecution among those presented.” Id.

Gudino relies heavily on the analysis of the Texas Court of Criminal Appeals in Cosio.

Although the charges in the two cases are similar, the evidence presented in the two cases is very

different. In Cosio, the complainant testified about four specific instances of sexual misconduct

which the court labeled as the shower incident, the bedroom incident, the Burger King incident,

and the pornography incident. 353 S.W.3d at 769. Given this specific testimony, the court held

that the jury charge “allowed for the possibility that the jury rendered non-unanimous verdicts,” -5- 04-13-00836-CR

asserting, “The jury could have relied on separate incidents of criminal conduct, which constituted

different offenses or separate units of prosecution, committed by Cosio to find him guilty in the

three remaining counts.” Id. at 774.

Unlike Cosio, A.G. did not provide a detailed description of four separate incidents.

Instead, she provided a detailed description of the first incident when Gudino took her to the back

yard of his house during a sleepover A.G. was having with Gudino’s sisters when she was nine

years old. A.G. stated that Gudino had sexual intercourse with her by placing his penis in her

vagina. A.G. then generally testified that Gudino engaged in the same sexual act when she was

ten and eleven at various locations in his house and in her house. A.G. testified that the sexual

intercourse occurred once or twice a week or every other day. A.G. stated that the sexual acts

occurred more often as she got older.

Because A.G. did not detail four specific incidents of sexual misconduct, the record does

not clearly support the possibility that the jury rendered non-unanimous verdicts like it did in

Cosio, where the jury was presented with separate incidents of criminal misconduct on which the

jury could rely. Even if we did conclude that the charge contained error, however, we hold the

record does not support a finding of egregious harm. As previously noted, we determine whether

the charge resulted in egregious harm by considering: (1) the entire jury charge; (2) the state of the

evidence, including the contested issues and weight of probative evidence; (3) the argument of

counsel; and (4) any other relevant information revealed by the record of the trial as a whole.

Taylor, 332 S.W.3d at 489. The presence of overwhelming evidence of guilt may be considered

when assessing jury-charge error. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App. 2012).

First, we note the State never argued that the jury did not have to be unanimous about its

verdict. Moreover, although A.G.’s testimony generally described the numerous times Gudino

assaulted her, she consistently testified that incidents occurred when she was nine, ten, and eleven, -6- 04-13-00836-CR

corresponding to the dates set forth in the indictment and the jury charge. A.G.’s testimony was

consistent with the statement she gave to police and the statements she gave during her

examination by a sexual assault nurse examiner. A.G.’s physical examination was abnormal and

showed evidence of penetrative trauma, and A.G. also tested positive for chlamydia, a sexually

transmitted disease. Finally, A.G. testified about a bump Gudino had on his penis, which was

consistent with an implant described by Gudino’s girlfriend. A.G.’s testimony was not directly

impeached. Instead, similar to the evidence in Cosio, Gudino’s defense was that he did not commit

any of the offenses and that reasonable doubt existed as to the charges because A.G. was not

credible, and that he could not have engaged in the acts once or twice a week during the summer

of 2007 when he was living in Florida or during the six or seven months he was incarcerated in

2008. Similar to Cosio, “[t]he jury was not persuaded that [Gudino] did not commit the offenses

or that there was any reasonable doubt. Had the jury believed otherwise, they would have acquitted

[Gudino] on all counts.” Instead, it is logical that the jury unanimously found A.G’s testimony to

be credible and that Gudino had engaged in the same sexual act on or about the dates in each of

the four years preceding the date in which he was caught hiding in a closet after again attempting

to engage in the same sexual act. Having reviewed the record as a whole, we cannot say that

Gudino was deprived of a fair and impartial trial such that egregious harm was shown.

Accordingly, Gudino’s first issue is overruled.

C. § 8.07(b) Instruction

Section 8.07(b) of the Texas Penal Code generally prohibits a person from being

prosecuted for or convicted of any offense committed before reaching 17 years of age unless the

juvenile court has waived jurisdiction. TEX. PENAL CODE ANN. § 8.07(b) (West Supp. 2014). In

his third issue, Gudino contends the trial court erred in failing to include an 8.07(b) instruction in

the jury charge because the State elicited testimony that he was born in 1989, which would make -7- 04-13-00836-CR

him sixteen during the portion of 2006 preceding his birth date. Gudino’s brief notes that a police

detective testified that Gudino was nineteen when the paperwork on the case was completed in late

May of 2009, “meaning that as of late May of 2006, [Gudino] had yet to turn 17.”

If an 8.07(b) instruction was the law applicable to this case, the trial judge was sua sponte

required to include the instruction in the jury charge. Taylor, 332 S.W.3d at 486. Section 8.07(b)

becomes law applicable to the case only if some evidence exists to support a rational inference that

Gudino was less than seventeen when one of the charged offenses occurred. See Shaw v. State,

243 S.W.3d 647, 657-58 (Tex. Crim. App. 2007). In deciding whether to include the section

8.07(b) instruction, the trial court was entitled to “rely on its own judgment, formed in the light of

its own common sense and experience, as to the limits of rational inference from the facts proven.”

Id. Similar to a jury, a trial court is not permitted to reach a conclusion “based on mere speculation

or factually unsupported inferences.” See Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App.

2007).

The only incident Gudino was charged with committing in 2006 was the aggravated sexual

assault that occurred on or about December 10, 2006. This date in the indictment and charge is

tied to A.G.’s testimony that the first incident occurred when she was nine. Because the evidence

established that A.G.’s birthdate was December 7, 1987, A.G. turned nine on December 7, 2006.

No evidence was presented, however, to establish Gudino’s birth date or to show that he was under

seventeen when the first alleged incident occurred. 1 Thus, the evidence presented would require

the trial court to speculate as to whether Gudino was under the age of seventeen on the date of the

first charged offense. Accordingly, because the record contains no evidence to support a rational

inference that Gudino was under the age of seventeen when A.G. was nine, the record did not

1 Although Gudino relies heavily on the Texas Court of Criminal Appeals decision in Taylor, the record in that case contained evidence of the date on which Taylor turned seventeen. 332 S.W.3d at 485 n.2.

-8- 04-13-00836-CR

establish that section 8.07(b) was law applicable to the case; therefore, the absence of an 8.07(b)

instruction in the jury charge was not error. Gudino’s third issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Rebeca C. Martinez, Justice

DO NOT PUBLISH

-9-