Johnny Molina v. the State of Texas

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-22-00004-CR ________________________

JOHNNY MOLINA, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court Lubbock County, Texas Trial Court No. DC-2021-CR-0497, Honorable Douglas H. Freitag, Presiding

February 6, 2023

MEMORANDUM OPINION ON MOTION FOR REHEARING Before QUINN, C.J., and PARKER and DOSS, JJ.

Appellant’s having moved for rehearing and upon our consideration of it and the

State’s response thereto, we withdraw the original “Memorandum Opinion” and substitute

this in its place.

Whether called the “shotgun” approach or “throwing everything in plus the kitchen

sink,” such strategies seldom assist. They confuse and muddle. Clarity and conciseness better serve the presentation of one’s complaints. That said, we turn to the nine issues

and sixty-four pages of writing presented by Johnny Molina in effort to reverse his

conviction for continuous sexual abuse of children. We affirm.

Issue Five

Our work begins with issue five entitled: “THE EVIDENCE IS LEGALLY

INSUFFICIENT TO WARRANT CONVICTION AND/OR TO ASSESS PUNISHMENT OF

A LIFE SENTENCE WITHOUT PAROLE.” We start there because sustaining the

complaint provides him the greatest relief available. See Mixon v. State, 481 S.W.3d 318,

322 (Tex. App.—Amarillo 2015, pet. ref’d) (requiring the consideration of issues regarding

the sufficiency of evidence first). But, upon considering the argument, we overrule it.

The applicable standard of review is that discussed in Jackson v. Virginia, 443 U.S.

307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), Merritt v. State, 368 S.W.3d 516

(Tex. Crim. App. 2012), and Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).

While applying it, we consider all the evidence favorable to the verdict, even if found

inadmissible when addressing later issues. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.

Crim. App. 1999).

Again, the State indicted appellant for continuous sexual abuse of a child. The

crime occurs when “during a period that is 30 or more days in duration” a 17-year-old or

older person “commits two or more acts of sexual abuse, regardless of whether the acts

of sexual abuse are committed against one or more victims” and the victim is “younger

than 14 years of age . . . .” TEX. PENAL CODE ANN. § 21.02(b)(1), (b)(2)(A). A review of

the evidence at bar illustrates that appellant sexually molested the two daughters of his

girlfriend. The acts included touching their vaginal areas and attempting to engage in

anal intercourse. He did so more than twice during a period spanning more than thirty

2 days. And, at the time, the girls were under fourteen years of age. So, the record contains

evidence on which reasonable jurors could find appellant guilty, beyond reasonable

doubt, of committing continuous sexual abuse of a child.

In structuring his argument, though, appellant did not discuss the evidence

inculpating him. Nor did he attempt to explain why it did not prove his guilt. Rather, he

alluded to such matters as 1) the nature of the prosecutor’s closing argument, 2) the

alleged bias of witnesses, 3) the admission of supposed hearsay, 4) an amendment to

the indictment about which he failed to object, 5) the utterance of personal opinion as to

his guilt by one or more witnesses, 6) reference to appellant as “a monster” being a

“racially charged” statement, 7) how “[p]ersons of color, like Appellant, often obtain[ing]

higher sentences,” 8) the lack of specific jury findings which specify the underlying “acts

of sexual abuse” committed by him, and 9) the collective effect of the foregoing upon his

conviction. Even if those topics were components of or subject to consideration under

the controlling standard of review, they were inadequately briefed. That is, he

accompanied none of them with both substantive analysis and citation to authority, as

required by Rule of Appellate Procedure 38.1(i). TEX. R. APP. P. 38.1(i) (stating that the

brief must contain a clear and concise argument for the contentions made with

appropriate citation to authority and the record). Thus, they were waived to the extent

they served as the foundation for his argument about the alleged insufficiency of the

evidence. Smith v. Dixon, No. 07-20-00197-CV, 2021 Tex. App. LEXIS 5592, at *6 (Tex.

App.—Amarillo July 14, 2021, pet. denied) (mem. op., not designated for publication)

(finding the issue waived because the appellant provided neither substantive argument

nor citation to legal authority and the record).

3 Issue One

Appellant’s explanation of his first issue leaves us scratching our collective heads

while attempting to understand his complaint. He seems to question whether the jury

found that he committed two or more acts of sexual abuse within a period of thirty days

or more. Allegedly, it did not because 1) the State argued that jurors need not consider

guilt of lesser included offenses until after considering guilt on the greater offense and 2)

“the offense of continuous sexual abuse of a child was not a count in either the grand jury

indictment or in the amended indictment . . . ”. These circumstances somehow led the

jurors to believe they need not consider the lesser included offenses when deciding if

appellant committed the greater offense of continuous sexual abuse of a child. As

understood, we overrule the issue for the following reasons.

First, we read indictments as a whole. Brooks v. State, 382 S.W.3d 601, 605-06

(Tex. App.—Amarillo 2012, pet ref’d). So read, the amended indictment at bar clearly

describes the offense of continuous sexual abuse of a child. Through it, the State charged

him with committing “two or more” itemized sexual offenses against two females who

were younger than fourteen during a period “from on or about the 23rd day of October,

2014 through the 9th day of February, 2018.” These encompass the very elements of the

crime, as described in section 21.02 of the Texas Penal Code. TEX. PENAL CODE ANN. §

21.01(b) (stating that a person commits the offense of continuous sexual abuse of a child

if “during a period that is 30 or more days in duration, the person commits two or more

acts of sexual abuse, regardless of whether the acts of sexual abuse are committed

against one or more victims” and the victims are “younger than 14 years of age . . .”). The

State having charged the offense within the amended indictment, appellant mistakenly

asserts that it did not.

4 Second, we presume the jury follows the trial court’s instructions and charge,

absent evidence otherwise. Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App.

2003); Hareter v. State, 435 S.W.3d 356, 361 (Tex. App.—Amarillo May 30, 2014, no

pet.). Here, the trial court instructed the jurors, via its charge, that they “are bound to

receive the law from the Court.”1 (Emphasis added). So too were they informed, via the

same document of 1) the elements of continuous sexual abuse of a child as described in

the statute and 2) the need to “first . . . determine whether the defendant is guilty beyond

a reasonable doubt of the charged offense of continuous sexual abuse of a child or

children.” An application paragraph followed wherein the trial court itemized multiple

instances of sexual abuse allegedly committed by appellant. The court coupled that with

the statement about the jurors needing to find he committed two or more of them over a

thirty-day or more period to be guilty of the crime. Appellant cites us to no evidence

illustrating that the jurors failed to heed those instructions. So, we presume that the jury

did as charged when finding appellant guilty of continuous sexual abuse. That is, it

considered his guilt for the greater offense first, as it was obligated to do. And, we know

of no authority requiring a jury to consider guilt on or find one guilty of a lesser included

offense in order to convict the individual of the greater charge, as appellant seems to

suggest.

Issue Two

Appellant next argues that his right to a unanimous jury verdict was violated. This

purportedly occurred because the jurors did not expressly find he committed the same

1We emphasize “the Court” since appellant seems to suggest that the jury followed the law as explained by the prosecutor. The trial court having admonished the jurors that it provides them the law, we again presume they heeded the directive; at least, appellant did not direct us to evidence indicating they did not. 5 two or more underlying instances of abuse. We previously addressed the identical issue

in Pfeifer v. State, No. 07-14-00277-CR, 2016 Tex. App. LEXIS 7825, at *11-12 (Tex.

App.—Amarillo July 21, 2016, pet. ref’d) (mem. op., not designated for publication) and

Kennedy v. State, 385 S.W.3d 729, 731-32 (Tex. App.—Amarillo 2012, pet. ref’d) and

rejected it. Jurors need not agree on which underlying individual acts the defendant

committed. Kennedy, 385 S.W.3d at 732.

To the extent that appellant also asserts that the jury charge “regarding a finding

of continuous sexual abuse did not mention the charge of continuous sexual abuse,” we

invite him to re-read the document. It expressly mentions the crime, its elements, and

applies those elements to the circumstances at bar. So too did it instruct the jurors that

they “will first be required to determine whether the defendant is guilty beyond a

reasonable doubt of the charged offense of continuous sexual abuse of a child or

children.” We overrule appellant’s second issue.

Issue Three

In appellant’s third issue, he argues the trial court erred in permitting the State to

amend its indictment to include an offense not considered by the grand jury. Through the

amendment, the State added another instance of assault to the litany of acts submitted

as the manner and means by which he committed continuous sexual abuse. Adding that

“offense” “invaded the province of the grand jury and violated Article 1, § 10 of the Texas

Constitution,” according to appellant. We overrule the issue.

Appellant did not object to the amendment. By failing to object, he waived his

complaint. Ramirez v. State, 105 S.W.3d 628, 630 (Tex. Crim. App. 2003). And,

assuming arguendo that the addition in question resulted in the inclusion of an additional

offense as opposed to the addition of another instance describing the manner and means

6 of committing the one offense, it did not fall outside the trial court’s jurisdiction. Contrary

to appellant’s suggestion otherwise, the return of an indictment is the act vesting the trial

court with jurisdiction over the prosecution. Id. at 629. A grand jury returned the

indictment at bar, thereby vesting the trial court with jurisdiction to try the cause.

Issue Six

By his sixth issue, appellant contends the trial court erred in admitting the

statements made by him to a detective during his interview with police. The statements

were purportedly made while appellant was in custody and without being afforded his

Miranda admonishments. We overrule the issue for the simple reason that appellant

failed to preserve it at trial. Not only did he withhold objection when a recording of the

interview was admitted into evidence but he also uttered “[n]o objection, your Honor.” See

King v. State, No. 11-21-00039-CR, 2022 Tex. App. LEXIS 6800, at *5-6 (Tex. App.—

Eastland Sept. 8, 2022, no pet.) (mem. op., not designated for publication) (holding that

appellant waived his article 38.22 since it was not raised at trial); Brantley v. State, No.

07-13-00219-CR, 2015 Tex. App. LEXIS 1730, at *5-6 (Tex. App.—Amarillo Feb. 23,

2015, no pet.) (mem. op., not designated for publication) (holding that appellant waived

his Miranda complaint on appeal because he failed to raise it at trial).

Issue Seven

Next, appellant argues that the admission of hearsay evidence violated his Sixth

Amendment constitutional right to confront witnesses against him. The purported hearsay

came from three witnesses, namely Rachel Martinez, Patti Salazar, and John Wuerflein.

Yet, this constitutional basis for excluding the testimony was not mentioned below. Nor

do general hearsay objections fill the void we encountered. Wright v. State, 28 S.W.3d

526, 536 (Tex. Crim. App. 2000) (holding that appellant’s general hearsay objection failed

7 to preserve is complaint founded on the Confrontation Clause). Thus, we overrule the

issue as waived.

Issue Eight

Appellant’s next issue involves the admission of outcry testimony. Allegedly, the

witnesses in question were not the first adults to whom the child victims revealed

instances of appellant’s abuse. Thus, admission of their testimony about what the victims

told them fell outside the hearsay exception created by article 38.072 of the Texas Code

of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.072. We overrule the

issue.

An appropriate outcry witness is not simply the first person to whom a child victim

may have mentioned the occurrence of some general misconduct. He or she is the first

person to whom details of the alleged offense were imparted. Maturino-Rodriguez v.

State, No. 07-21-00289-CR, 2022 Tex. App. LEXIS 7338, at *6-7 (Tex. App.—Amarillo

Sept. 28, 2022 no pet.) (mem. op., not designated for publication). So, one does not carry

his burden of showing error by simply indicating others were told first, much like appellant

did here. Rather, his obligation was to identify the individual or individuals to whom actual

details of the assault were first revealed, describe those details, and illustrate that the

persons testifying as outcry witnesses were not the first to hear them.

Moreover, in cases involving multiple instances of sexual assault, one must

remember that there can be multiple outcry witnesses who were told of and testify about

the distinct assaults. Id. That means while a particular outcry witness may not be the

appropriate person to reiterate the child’s description of one assault, he or she may well

be the appropriate witness to reiterate the description of another. Following that to its

logical end, it would be incumbent upon the complainant to illustrate that the details of

8 each assault mentioned in the outcry was first told to someone else. If that were not

done, we would be hard-pressed to say the trial court erred in permitting the outcry

witnesses to testify about the various assaults. In developing his issue, appellant did not

parse through the outcry testimony in that way. He did not attempt to illustrate that others

heard the details of each alleged assault before those details were told to the testifying

outcry witnesses. We were left to develop that ourselves. Yet, such is not our obligation

for appellant has the burden to adequately brief the issue. And, to the extent that he

suggests through the argument provided us that one’s hearing mere allusions to

“touching” makes the listener the outcry witness, he is mistaken. As we observed in

Maturino-Rodriguez, such general comments are not the details needed to make one the

first outcry witness. See id. at 2022 Tex. App. LEXIS 7338, at *7.

Finally, the two victims also testified at trial and, while doing so, described

instances of sexual abuse inflicted upon them by appellant. Furthermore, their testimony

about those instances was admitted without objection. So, we have of record other

evidence like that imparted by the alleged outcry witnesses. The presence of that

substantially similar, yet unobjected to, evidence rendered harmless any supposed error

regarding compliance with article 38.072. Mitchell v. State, No. 07-18-00169-CR, 2019

Tex. App. LEXIS 1800, at *5 (Tex. App.—Amarillo March 7, 2019, no pet.) (mem. op., not

designated for publication) (stating that the improper admission of evidence is harmless

if the same or similar evidence is admitted without objection at some other point during

trial). We overrule the issue.

9 Issue Nine

Next, appellant claims his right to be free from double jeopardy was violated. This

was purportedly so because he was subjected to multiple punishments for the same

offense. We overrule the issue.

Assuming arguendo that appellant’s contention about including lesser included

offenses in the jury charge exposes the accused to double jeopardy, we note that he was

convicted of only one crime. That crime was the greater and more serious offense of

continuous sexual abuse of a child. That being so, he suffered no harm. This is so

because the remedy to a double jeopardy violation based on subjection to multiple

punishments for the same crime is to affirm the conviction for the most serious offense

and vacate the other conviction. Duran v. State, 492 S.W.3d 741, 745 (Tex. Crim. App.

2016); Bigon v. State, 252 S.W.3d 360, 372-73 (Tex. Crim. App. 2008). So, he received

the relief to which he would have been entitled had a violation occurred.

Through his motion for rehearing, appellant suggested we ignored an aspect of

double jeopardy prohibiting “multiple prosecutions for the same offense,” that is,

“prohibit[ing] a state from trying a defendant for both a greater offense and a lesser-

included offense . . . .” (Emphasis added). Admittedly, the appellate brief he filed

generally alluded to three “protections” of double jeopardy. Yet, appellant directed our

attention to what he called the “third protection.” On page 58 of his brief, he said the “third

protection” “protects against multiple punishments for the same offense.” (Emphasis

added). Upon turning the page, we encountered the statement that “[a] double jeopardy

violation arises under the third protection, which is the issue in this case, either in

the context of a greater offense and lesser-included offenses or when the same criminal

act can be tried and punished under two distinct provisions . . . .” (Emphasis added). His

10 utilizing that language meant that “his issue in this case,” i.e., his complaint, involved

exposure to multiple punishments. And, that was the framework in which we addressed

the issue. In other words, we considered what he directed us to consider. Raising new

issues in a motion for rehearing comes too late. Riles v. State, 417 S.W.3d 606, 613-14

(Tex. App.—Amarillo 2013), aff’d on other grounds, 452 S.W.3d 333 (Tex. Crim. App.

2015) (stating that a motion for rehearing does not afford a litigant an opportunity to raise

new issues, especially after the case has been briefed, argued, and decided on other

grounds).

Issue Four

We consider appellant’s fourth issue last, given its tenor. Through it, he globally

asserts that the “many, multiple errors” in this case contributed to a wrongful verdict and

sentence. Having overruled each of appellant’s other issues for the lack of error, waiver,

inadequate briefing, and the lack of harm (assuming error occurred), we overrule this

issue as well.

The trial court’s judgment is affirmed while the motion for rehearing is denied.

Brian Quinn Chief Justice

Do not publish.