Mario Isabel Ventura Lopez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: January 9, 2024
• Docket: 01-22-00047-CR
• Status: Published

Opinion

Opinion issued January 9, 2024

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00047-CR ——————————— MARIO ISABEL VENTURA LOPEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 337th District Court Harris County, Texas Trial Court Case No. 1659799

MEMORANDUM OPINION

Appellant Mario Isabel Ventura Lopez appeals his conviction for continuous

sexual abuse of a child. See TEX. PENAL CODE § 21.02. In two issues, Lopez contends

that the trial court erred by: (1) denying his motion for a mistrial, and (2) incorrectly

assessing court costs. We affirm as modified. Background

Because Lopez does not challenge the sufficiency of the evidence, only a brief

recitation of the facts is necessary to the disposition of this appeal. In August 2019,

Lopez was living in an apartment in Houston and was known within the complex for

playing soccer with the children and repairing their bicycles. D.M., a ten-year-old

boy, also lived in the complex with his family. D.M.’s family shared the apartment

with another family, who had a son around D.M.’s age (J.V.).

D.M.’s mother worked in a convenience store within the complex, and each

day, D.M. visited her in the afternoon for coffee. One afternoon, when D.M. did not

arrive, his mother became worried and began looking for him. As she was calling

his name near Lopez’s ground floor apartment, she saw the lights come on inside the

apartment. She also observed a pair of adult legs and a pair of children’s legs through

the window. D.M.’s mother then had to return to her store because a customer was

waiting.

Shortly thereafter, D.M.’s mother saw D.M. outside the store, but she grew

suspicious when he appeared to be avoiding Lopez, who had gone inside the store.

Later that evening, during his bath, D.M.’s mother checked D.M.’s body because

she suspected something amiss with Lopez. She noticed his anus was red. D.M.’s

mother asked him whether he had been at Lopez’s apartment, but D.M. denied it.

The next day, D.M.’s grandfather questioned D.M. about Lopez, and D.M. made an

2 outcry to his grandfather that Lopez had sexually abused him three times. D.M.’s

grandfather discussed D.M.’s outcry with J.V.’s family and learned that Lopez had

been sending inappropriate text messages to J.V.1 D.M.’s grandfather then called the

police, who arrested Lopez that evening.

That same night, D.M.’s mother took him for an examination at the Children’s

Assessment Center, where the examiner observed a bruise on D.M.’s penis

consistent with sexual abuse. D.M. also reported three instances of sexual abuse to

the examiner and stated that Lopez showed him pornography. Later, D.M.

participated in two forensic interviews wherein he reiterated that he had been

sexually abused by Lopez on three occasions.

Police later interviewed Lopez. During the interview, Lopez admitted that he

sat D.M. in his lap while both were naked, touched D.M.’s anus, and masturbated

while sitting next to D.M. Lopez claimed that D.M. asked Lopez to touch him. Lopez

also admitted that he kissed J.M., another boy from the complex, but denied any

other inappropriate contact with J.M. Lopez also admitted to the officer that he

touched a third boy’s (J.V.’s) penis over his clothing on one occasion.

Before trial, the trial court conducted a hearing pursuant to Texas Code of

Criminal Procedure article 38.37 and heard testimony from three potential witnesses

regarding alleged extraneous offenses Lopez committed against them, including

1 The text messages were admitted into evidence. 3 J.M. and J.V. Ultimately, after hearing the testimony, the trial court ruled that J.V.

and J.M. could testify.2

At trial, the jury heard testimony from numerous witnesses, including D.M.,

who described the three separate times Lopez sexually abused him. J.V. and J.M.

also testified concerning the alleged sexual abuse they suffered from Lopez. Other

witnesses included D.M.’s mother; his grandfather; the investigating officers; the

sexual assault nurse examiner who examined D.M.; and the forensic interviewers

who interviewed D.M., J.M, and J.V. Ultimately, the jury found Lopez guilty of

continuous sexual abuse of D.M., and the trial court assessed punishment at fifty

years’ confinement in the Texas Department of Criminal Justice.

Motion for Mistrial

In his first point of error, Lopez contends that the trial court erred in denying

his motion for a mistrial. Specifically, Lopez argues that the trial court should have

declared a mistrial after the jury heard an unredacted portion of Lopez’s recorded

interview, which he claims impermissibly referenced extraneous offenses.

At trial, the jury heard testimony from Detective Muñoz, a police officer

assigned to the Special Victims Division, Crimes Against Children Unit, who

2 See TEX. CODE CRIM. PROC. art. 38.37, § 2-a (stating that before evidence described by art. 38.37, § 2 may be introduced, trial court must “(1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for that purpose”). 4 interviewed Lopez in Spanish. During Detective Muñoz’s testimony, the State

played the audio recording of the interview, while periodically pausing the audio to

ask Detective Muñoz questions about the interview’s content. Both the prosecutor

and the witness referred to the English transcription of the interview, which had been

admitted into evidence and was being shown to the jury contemporaneously via

projector.

As the audio played, the jury heard the following3:

Q: ¿Y tú crees que va ser . . . 5 niños van a – van a decir cosas porque Mariano4 le está diciendo eso?

The transcription of this statement read as follows:

Defense counsel interjected just after this portion of the interview was played and

asked to approach the bench. He then moved to exclude the entirety of the rest of the

audio on the basis that the jury heard impermissible testimony regarding “five other

kids . . . that are making outcries” against Lopez, in violation of the court’s ruling at

the 38.37 hearing that the State would be allowed to elicit extraneous offense

evidence regarding J.V. and J.M. only. After the trial court excused the jury, defense

3 The record also contained the Spanish transcription, as shown below. 4 Mariano is D.M.’s grandfather. 5 counsel moved for a mistrial, arguing that a curative instruction would not suffice

because the jurors could not “unhear” the inadmissible evidence. The State

countered that the error was not harmful, because the English transcript, which was

being shown to the jury, was correctly redacted. The State suggested that it could

further redact the audio and provide that version to the jury during its deliberations.

After a break for lunch, the trial court heard further argument regarding the

audio. The State acknowledged that the reference to “cinco niños” (“five kids”)

should have been redacted to match the transcription, and that this was admittedly

the State’s mistake. The State again urged that the error could be corrected by a

curative instruction because the severity of the misconduct was minimal—it was

unclear whether any of the jurors understood the statement.5 The State also argued

that the statement itself was vague and unclear as to whether the “five kids” were

complainants or just witnesses to Lopez’s conduct.

In response, defense counsel argued that the statement was harmful because

it suggested additional victims of Lopez, beyond those who had testified at trial.

Counsel also contended that “cinco niños” was not a particularly complex phrase,

and the jury likely understood the meaning. He further argued that the redaction in

the transcript, which only omitted the typed numeral “5”, was not sufficient; jurors

5 There was no evidence in the record indicating whether any of the jurors understand Spanish. 6 would be able to decipher the omission. Lastly, defense counsel contended that any

curative instruction would only serve to call the jury’s attention to the harmful

portion of the audio.

Ultimately, the trial court denied the motion for mistrial but ordered the

following: (1) no further audio from the interview would be published to the jury,

and the recording would not be sent back to the jury room during deliberations; (2)

the State had to further redact the transcription to include additional lines following

the reference in question, and only this updated transcription would be made

available to the jury during deliberations; and (3) the Court would issue a curative

instruction to the jury.

When the jury returned, the court gave the following instruction:

Ladies and gentlemen of the jury, if you will please listen closely to the instruction that I am about to give you.

Ladies and gentlemen of the jury, the written transcript of Mr. Ventura Lopez’s interview with this officer is the only evidence going to be submitted to you regarding his interview. You are instructed and ordered to disregard the audio recording of Mr. Ventura Lopez’s statement. You may not consider the audio recording of Mr. Ventura Lopez’s interview with this officer, nor its contents for any reason whatsoever; and you may not discuss it in your deliberations.

The trial court then individually polled each juror and asked if they would be able to

follow this instruction. Each juror answered in the affirmative. Additionally, the

court’s charge included an instruction that the jury was only to consider additional

7 alleged offenses if it believed beyond a reasonable doubt that Lopez committed these

alleged offenses.

A. Standard of Review

We review a trial court’s denial of a motion for mistrial for abuse of discretion.

Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Under this standard,

we view the evidence in the light most favorable to the trial court’s ruling and uphold

the ruling if it falls within the zone of reasonable disagreement. Id. A mistrial is a

remedy intended for extreme circumstances when prejudice is incurable and less

drastic alternatives have been explored. See id. at 884–85. In determining whether a

prejudicial event was so harmful as to warrant reversal on appeal, we consider the

prejudicial effect, any curative measures taken, and the certainty of conviction

absent the prejudicial event. See Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim.

App. 2004).

B. Analysis

Testimony referring to or implying extraneous offenses can be rendered

harmless by an instruction to disregard unless it was so clearly calculated to inflame

the minds of the jury or was “of such damning character as to suggest it would be

impossible to remove the harmful impression from the jury’s mind.” Kemp v. State,

846 S.W.2d 289, 308 (Tex. Crim. App. 1992). Whether a witness’s improper

8 reference to an extraneous offense warrants a mistrial depends on the particular facts

of the case. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

Here, the vague reference to “cinco niños” does not constitute such improper

testimony. Rather, the challenged testimony closely resembles the references that

have been cured by an instruction to disregard. See, e.g., Ladd, 3 S.W.3d at 571

(instruction to disregard cured witness’s improper reference to defendant’s multiple

juvenile arrests); Kemp, 846 S.W.2d at 308 (witness’s reference to defendant having

“recently been released from the penitentiary” cured by instruction to disregard);

Nobles v. State, 843 S.W.2d 503, 513–14 (Tex. Crim. App. 1992) (witness’s

statement that defendant “didn’t want to go back to prison” cured by prompt

instruction to disregard).

In Hernandez v. State, 454 S.W.3d 643 (Tex. App.—Houston [1st Dist.] 2014,

pet. ref’d), this court considered whether the trial court erred in denying a mistrial

following an accomplice witness’s testimony in Spanish that the accomplice had

committed two prior robberies with the defendant. The court determined that the

record did not demonstrate that this testimony was “so highly prejudicial and

incurable” that the trial court erred in denying the motion for mistrial. Id. at 650

(citing Ocon, 284 S.W.3d at 884). In so holding, the court observed that the trial

court had polled the jurors, determined which of them understood the testimony, and

then instructed those jurors not to share the information with the other jurors and not

9 to consider the evidence. Id. We also noted that jurors are presumed to follow

instructions, and the appellant did not identify any evidence suggesting that the

jurors did not follow the trial court’s instructions. Id.; see also Colburn v. State, 966

S.W.2d 511, 520 (Tex. Crim. App. 1998).

Similarly, here, Lopez has not directed us to anything in the record which

suggests that the jurors did not comply with the trial court’s instruction to disregard

the audio recording. In light of the limited nature of the “cinco niños” remark, D.M.’s

testimony,6 the additional evidence regarding extraneous offenses, and Lopez’s own

admissions concerning D.M., J.V., and J.M., we cannot say that the audio in question

played a significant role in the jury’s decision to convict Lopez. Nor was the audio

reference to “cinco niños” so highly prejudicial and incurable that the trial court

erred by denying the motion for mistrial. See Hernandez, 454 S.W.3d at 650; see

also Hawkins, 135 S.W.3d at 77 (holding that courts should consider certainty of

conviction absent misconduct). The trial court’s instruction to disregard, the court’s

charge, and the fact that the jurors were only given a properly redacted version of

6 We note here that a child complainant’s testimony, standing alone, is sufficient to support a conviction. See TEX. CODE CRIM. PROC. art. 38.07(a); Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel Op.] 1978); Jensen v. State, 66 S.W.3d 528, 534 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); see also Mendoza- Navarro v. State, No. 01-18-00706-CR, 2021 WL 967144, at *5 (Tex. App.— Houston [1st Dist.] Mar. 16, 2021, no pet.) (mem. op., not designated for publication) (applying foregoing authorities in context of continuous sexual abuse of child).

10 the transcription, sufficed to cure any prejudice to Lopez resulting from the

prosecution’s mistake in playing the unredacted audio.7

We overrule Lopez’s first issue.

Assessment of Court Costs

In his second issue, Lopez argues that the trial court erred in its assessment of

court costs. Lopez contends that the judgment reflects that the trial court assessed

$290 in court costs, but only $185 is authorized by statute. See TEX. LOC. GOV’T

CODE § 133.102 (authorizing $185 upon conviction of felony for offenses committed

after January 1, 20208). Though Lopez claims that the trial court did not indicate the

basis for the additional $105 it assessed, the record contains an itemized bill of costs,

which includes the following:

Consolidated Court Cost – State $185.00

Consolidated Court Cost – Local $105.00

As the State points out, together these amounts total $290. However, the State also

acknowledges that by statute, the trial court should have assessed $133 in court costs,

7 The prosecution explained that it made several rounds of redactions to the audio and written transcription in an effort to comply with the trial court’s 38.37 ruling and admitted that it missed the “cinco niños” reference in the final redaction of the audio. The prosecution received the final audio redactions during trial and did not review the final version before playing it to the jury. Apparently, a prior version of the audio did redact this comment. 8 As explained below, because of the date of the offense at issue, the trial court should have assessed court costs in the amount of $133, not $185. 11 not $185. See Wiggins v. State, 622 S.W.3d 556, 561 (Tex. App.—Houston [14th

Dist.] 2021, pet. ref’d) (explaining history of amendment of Texas Local

Government Code section 133.102, particularly, 2019 amendment increasing court

cost for felony from $133 to $185 for offenses committed on or after January 1,

2020). It is undisputed that the offense at issue occurred in 2017, prior to the effective

date of the legislative change to section 133.102. Accordingly, we sustain this part

of Lopez’s second issue and modify the trial court’s judgment to reflect a decrease

of $52 in assessed court costs. See id.

Lopez also argues that the trial court erred in not conducting an inquiry on the

record regarding his ability to pay court costs. See TEX. CODE CRIM. PROC. art.

42.15(a-1) (providing that “during or immediately after imposing a sentence . . . a

court shall inquire on the record whether the defendant has sufficient resources or

income to immediately pay all or part of the fine and costs”). Lopez asks that we

remand this case for such an inquiry.

The Tyler Court of Appeals recently considered an identical argument in

Sloan v. State, 676 S.W.3d 240 (Tex. App.—Tyler 2023, no pet.). There, the court

first noted that even if it assumed that the trial court abused its discretion in failing

to conduct such an inquiry, remand was only appropriate if the trial court’s error

“prevents the proper presentation of the case to [the appellate] court and the trial

court can correct its action or failure to act.” Id. at 241 (citing TEX. R. APP. P.

12 44.4(a)). The court pointed out that the appellant’s only contention was that the

ability-to-pay inquiry did not occur on the record. Id. at 242. The appellant did not

allege that the trial court’s failure to strictly comply with the statute prevented him

from raising or developing a claim on appeal. Id.

Further, the court observed that the result of the ability-to-pay inquiry (had it

occurred) was already apparent from the record, because the trial court’s judgment

required appellant to pay his fines and court costs “[u]pon release from

confinement.” Id. The court determined that this language comported with the

second portion of article 42.15(a-1), which states: “If the court determines that the

defendant does not have sufficient resources or income to immediately pay all or

part of the fine and costs, the court shall determine whether the fine and costs should

be . . . required to be paid at some later date.” Id.; TEX. CODE CRIM. PROC. art.

42.15(a-1)(1). Therefore, the Sloan court determined that because the trial court

ordered that appellant’s fines were due to be paid upon his release, “it must have

determined that [the appellant] did not have sufficient resources or income

immediately to pay all or part of the fine and costs.” 676 S.W.3d at 242 (citing TEX.

CODE CRIM. PROC. art. 42.15(a-1)(1)). The court concluded that because appellant

did not challenge the trial court’s order that he pay the fine and costs upon release,

any remand for an ability-to-pay inquiry would be “gratuitous,” given that the

ultimate outcome from such an inquiry was ostensible from the record. Id.

13 Here, the trial court’s judgment similarly provides that “[u]pon release from

confinement, the Court ORDERS Defendant to proceed without unnecessary delay

to the District Clerk’s office, or any other office designated by the Court or the

Court’s designee, to pay or to make arrangements to pay any fines, court costs,

reimbursement fees, and restitution due.” As in Sloan, Lopez does not challenge this

portion of the trial court’s judgment. Therefore, we likewise conclude that the trial

court “must have determined that [Lopez] did not have sufficient resources or

income immediately to pay all or part of the fine and costs,” and as such, remand for

an ability-to-pay inquiry “would amount to an unnecessary exercise and a waste of

judicial resources.”9 See id. We overrule the latter part of Lopez’s second issue as it

pertains to the ability-to-pay determination.

Conclusion

We affirm the trial court’s judgment as modified.

Amparo Monique Guerra Justice

9 As the Sloan court observed, Lopez is not without recourse if, upon his release, he is unable to pay the fines and court costs. At that time, he can seek relief from the trial court. See id. at 242 n.2; see also TEX. CODE CRIM. PROC. art 43.035(a), (c) (providing that if defendant notifies court of difficulty paying fines and costs in compliance with court’s judgment, court shall conduct hearing to determine whether that portion of judgment imposes undue hardship on him; if it determines such hardship exists, court shall consider whether fine and costs should be satisfied through one or more methods outlined in Texas Code of Criminal Procedure, article 42.15(a-1)). The trial court retains jurisdiction to make such a determination. See TEX. CODE CRIM. PROC. art. 43.035(e). 14 Panel consists of Justices Goodman, Rivas-Molloy, and Guerra.

Do not publish. TEX. R. APP. P. 47.2(b).