Jason Llaban Canastra v. the State of Texas

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JASON LLABAN CANASTRA, § No. 08-23-00313-CR

Appellant, § Appeal from the

v. § 379th Judicial District Court

THE STATE OF TEXAS, § of Bexar County, Texas

Appellee. § (TC#2023CR5454)

MEMORANDUM OPINION

Appellant Jason Llaban Canastra pled guilty to delivering a controlled substance or

marijuana to a child and was sentenced by the jury to ten years. Tex. Health & Safety Code Ann.

§ 481.122. He appeals, arguing that the testimony of the child’s mother about the effect the drugs

on the child was inadmissible for lack of personal knowledge. 1 For the reasons below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

J.W. 2 began using drugs when she ten years old; by the time she was 14 she was

consistently running away from home. J.W. met Appellant in 2022, when she was 15 years old

1 This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code Ann. § 73.001. We follow the precedent of the Fourth Court of Appeals to the extent it might conflict with our own. See Tex. R. App. P. 41.3. 2 We use initials to protect the complainant’s identity. and he was 39, and he began giving and selling methamphetamines and marijuana to her. On

August 28, 2022, after being with Appellant, J.W. texted her mother, Nicole, asking for her to

make an appointment with the gynecologist because her vagina was swollen, bleeding, and

bruised. After J.W. discussed the incident with her recovery coach, and he called the police,

Appellant was arrested.

Appellant was charged with three counts: aggravated sexual assault of a child, sexual

assault of a child, and delivering marijuana and/or methamphetamine to a child. At the beginning

of trial, Appellant pled guilty to the third count, and trial proceeded on the sexual offense counts.

At trial, J.W. testified about her drug use in general. As for the August incident, J.W.

testified to using methamphetamines and ecstasy (which she referred to as molly) and then going

to Appellant’s house where they drank shots. She said that after that, “the drugs at once kind of hit

[her]” and she was “kind of not aware of what was going on . . . .” Although she remembered being

naked and having oral sex, she did not remember if Appellant penetrated her.

A video of Appellant’s police interview after his arrest was also shown to the jury. In that

interview, Appellant admitted to using drugs with J.W. and kissing her but denied knowing that

she was under 18 and denied ever having sex with her.

After the close of the State’s evidence, the trial court granted a directed verdict on counts

one and two because there was no evidence of penetration by Appellant’s sexual organ, as alleged

in the indictment. The jury, however, was instructed on the lesser included offenses of attempted

aggravated sexual assault of a child, attempted sexual assault of a child, and indecency with a child

by exposure. The jury returned a not guilty verdict on all counts, except count three to which

Appellant had pled guilty.

2 The jury then proceeded to the punishment phase. The jury heard from J.W.’s mother,

Nicole. Appellant’s sole issue on appeal complains about this single question and answer in that

testimony:

Q: And so, specifically, how has . . . methamphetamine and the delivery of methamphetamines affected [J.W.] and how did it affect her in this particular instance?

A: She was . . .

[Defense counsel]: Judge, I’m going to object to speculation.

THE COURT: I’m going to overrule that.

A: She was seeking drugs. And when she was seeking the drugs, she went and got the drugs. And then doing so, it–it put her in a situation to where she could then further get taken advantage of. Yeah, she wanted something. It was provided. It was provided.

Other punishment phase evidence included an audio recording of a call between Appellant and his

girlfriend while he was in jail awaiting trial. In the call, Appellant told his girlfriend that when he

was arrested, he had 14 grams of “ice” (crystal meth) and his drugs were in his son’s backpack.

Until Appellant’s mother found the drugs, his son was taking them to school every day. The jury

sentenced Appellant to ten years and recommended that he not be placed on community

supervision.

STANDARD OF REVIEW AND APPLICABLE LAW

Appellant’s sole issue on appeal is whether the trial court abused its discretion in overruling

his “speculation” objection to Nicole’s testimony about the effect of drugs on J.W. An objection

to speculation is essentially an objection to the witness’s lack of personal knowledge under rule of

evidence 602. Aleman v. State, 497 S.W.3d 518, 524 (Tex. App.—San Antonio 2016, no pet.).

Appellant expands that argument to also claim that this testimony violates rule of evidence 701

3 (opinion testimony by lay witnesses) because Nicole did not have personal knowledge required to

offer an opinion. Although lay opinions have a personal knowledge component, an objection to

speculation does not preserve a complaint about opinion testimony. Tex. R. App. P. 33.1; Liller v.

State, No. 08-15-00125-CR, 2018 WL 1959679, at *4 (Tex. App.—El Paso Apr. 26, 2018, pet.

ref’d) (not designated for publication); Adell v. State, No. 01-21-00439-CR, 2023 WL 4938111, at

*56 (Tex. App.—Houston [1st Dist.] Aug. 3, 2023, pet. ref’d) (mem. op., not designated for

publication). Therefore, Appellant only preserved his complaint for lack of personal knowledge

under Rule 602.

We review a trial court’s ruling admitting evidence under an abuse of discretion standard.

Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). “A trial court abuses its discretion

when its decision lies outside the zone of reasonable disagreement.” Id.

ANALYSIS

A. Admissibility of Nicole’s testimony

“A witness may testify to a matter only if evidence is introduced sufficient to support a

finding that the witness has personal knowledge of the matter.” Tex. R. Evid. 602. Even though

the testimony at issue came during the punishment phase, we examine the entire record to

determine if personal knowledge was established. Yohey v. State, 801 S.W.2d 232, 242

(Tex. App.—San Antonio 1990, pet. ref’d) (“At the penalty stage, a jury may consider all the

evidence adduced at the guilt stage.”) (citing Stoker v. State, 788 S.W.2d 1, 7 (Tex. Crim. App.

1989); Santana v. State, 714 S.W.2d 1, 8 (Tex. Crim. App. 1986).

In the guilt and innocence phase, Nicole, who raised J.W., testified about J.W.’s childhood

and the changes in her behavior once she began using drugs. She stated that J.W. began sneaking

out of the house and running away when she was 14 years old. When J.W. was home, she would

4 be “erratic,” “not hungry,” would “crash and sleep for days,” and wake up angry. Even when J.W.

was not home, Nicole had personal knowledge of J.W.’s behavior’s because she would text and

post on social media in the middle of the night. She also saw videos of J.W. using drugs on her

phone. When J.W. came back home in August 2022, she was “defeated” and “depressed.” This

testimony is sufficient evidence that Nicole had personal knowledge of how methamphetamine

use affected J.W. in general.

Appellant argues that Nicole did not have “personal knowledge about whether JW was

further taken advantage of due to Appellant delivering drugs to her.” But that was not Nicole’s

testimony. Nicole stated that J.W.’s determination to get drugs when she wanted them “put her in

a situation to where she could then further get taken advantage of.” This one answer must be read

in context with the rest of her testimony. Immediately before this exchange Nicole stated, without

objection, that J.W. was not getting money from her to buy drugs and was instead relying on men

to give drugs to her. In this context, Nicole’s testimony was not that J.W. had been taken advantage

of because Appellant gave her drugs, but that by relying on other people to give drugs to her, she

was vulnerable. At most, it is Nicole’s opinion about the risks of J.W.’s drug-seeking and, as stated

above, Appellant did not object and preserve a complaint on these grounds.

We hold that the trial court’s evidentiary ruling was not outside the “zone of reasonable

disagreement” and was not an abuse of discretion.

B. Harm analysis

Even if it were error to allow Nicole’s testimony about the affect of methamphetamines on

J.W., that error would be harmless. Error in admitting evidence is nonconstitutional error that

“must be disregarded” unless it affects Appellant’s “substantial rights.” Tex. R. App. P. 44.2(b);

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). Admission of evidence will only

5 affect substantial rights “if the appellate court, after examining the record as a whole, has fair

assurance that the error did not influence the jury or had but a slight effect.” Johnson v. State, 967

S.W.2d 410, 417 (Tex. Crim. App. 1998).

Appellant argues that his substantial rights were affected because Nicole’s testimony

“provided evidence that J.W. was taken advantage of sexually.” But, during the guilt stage of the

trial, the jury heard evidence that was much more damning than Nicole’s testimony that J.W. could

be taken advantage of because of her desire to obtain drugs. For example, J.W. testified that

Appellant gave her shots after she had already used methamphetamines and taken ecstasy. She

stated that she was hardly coherent, but remembered that she was naked, that Appellant was

performing oral sex, and that she felt pain. Despite the jury’s not guilty verdicts, it is possible that

the jurors believed J.W.’s testimony, but that they did not find that it met the elements of attempted

sexual assault (which requires an attempt to penetrate) or indecency with a child (which requires

exposure). Since evidence of J.W.’s sexual vulnerability besides Nicole’s testimony was admitted

without objection, Nicole’s testimony was harmless. Williams v. State, 273 S.W.3d 200, 227

(Tex. Crim. App. 2008) (noting in a harm analysis that much of the erroneously admitted testimony

during the punishment phase was heard during the guilt phase of trial).

When conducting a harm analysis, we also take into consideration the nature of the

evidence supporting the verdict. Schutz v. State, 63 S.W.3d 442, 444 (Tex. Crim. App. 2001). In

this case, the jury’s punishment verdict could have been based on other evidence. Regardless of

whether J.W. was taken advantage of, Appellant pled guilty of delivering a controlled substance

or marijuana to a child and J.W. testified that the substance was methamphetamine. The jury also

heard evidence that Appellant endangered his own son as well as other children at his son’s school

by putting methamphetamine in his son’s backpack.

6 Even if the trial court erred in admitting the objected-to portion of Nicole’s testimony, that

testimony would not have influenced the jury to give a longer sentence than they otherwise would

have.

CONCLUSION The trial court did not abuse its discretion in allowing testimony that drug use put J.W. in

a situation where she could be taken advantage of. We affirm.

JEFF ALLEY, Chief Justice

May 20, 2024

Before Alley, C.J., Palafox, and Soto, JJ.

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