Rosalino Galarza Cerbantez v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: October 8, 2024
• Docket: 05-23-00432-CR
• Status: Published

Opinion

AFFIRMED and Opinion Filed October 8, 2024

In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00432-CR

ROSALINO GALARZA CERBANTEZ, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 283rd Judicial District Court Dallas County, Texas Trial Court Cause No. F22-76471-T

MEMORANDUM OPINION Before Chief Justice Burns, Justice Reichek, and Justice Nowell Opinion by Chief Justice Burns Appellant Rosalino Galarza Cerbantez appeals his conviction for continuous

sexual abuse of a child under the age of 14. In a single issue, he argues the trial court

erroneously denied his for-cause challenges to three venire members in violation of

his Fifth, Sixth, Eighth, and Fourteenth amendment rights under the United States

Constitution. We affirm in this memorandum opinion. See TEX. R. APP. P. 47.4.

The facts relevant to Cerbantez’s appeal relate to the questioning of three

venire members and his challenges for cause. First, venireperson Morgan, after

initially affirming she was “more inclined to believe the testimony of a child versus the testimony of an adult,” stated (1) “it would be very hard not to go on the side of

a child;” (2) “I think I would expect more evidence from the adult to the contrary”

of a child’s testimony; and (3) “I know you don’t have to provide evidence, but

knowing how the system works at [Dallas Children’s Advocacy Center], I’ve

worked with them, to get to this level I know all the other things that have to have

already taken place. And I think that knowledge would be – it would be hard for me

to be impartial.”

Second, venireperson Graves volunteered that she “too volunteer[s] at a child

advocacy center so just seeing the process that kids have to go through it’s really

hard for them.” Defendant’s counsel then told her, “If you don’t think that this is the

right case for you this is really the right time for you to say that;” in response,

venireperson Graves acknowledged, “It’s probably not the best case for me then . . .

in my heart it’s a hard job.”

Third, venireperson Parameswaran said, “I feel the same way. I feel how we

got to this point, having known people in my life who have gone through child sexual

abuse. I don’t feel like I could be unbiased.”

After excusing the jury panel from the courtroom for both sides to submit their

peremptory strikes, the trial court judge said:

Now, earlier the State and the Defense announced their challenges for cause. The Court made certain rulings on them. There are some that the Defense had that I did not agree to. The Defense wanted to do this before we swore this panel in. So you can have on the record who your challenges were and the reason therefore. Go ahead.

–2– Cerbantez’s trial counsel proceeded to specifically challenge Morgan, Graves, and

Parameswaran for cause on the basis that each had admitted they could not treat him

fairly and the trial court overruled each challenge. Cerbantez then requested three

additional peremptory strikes to replace the ones he used to strike them and the trial

court denied his request. Cerbantez’s trial counsel did not, however, identify three

objectionable jurors impaneled by the trial court. Nor did he demonstrate that he

used all his peremptory strikes. The trial court seated the jury and commenced the

trial. The jury then convicted Cerbantez and sentenced him to 50 years of

confinement.

“If a trial judge errs in overruling a challenge for cause against a venire

member, then the appellant must show that he was harmed because he was forced to

use a peremptory strike to remove the venire person and that he suffered a detriment

from the loss of that peremptory strike.” Buntion v. State, 482 S.W.3d 58, 83 (Tex.

Crim. App. 2016). Error is preserved for review only if appellant (1) used all his

peremptory strikes, (2) asked for and was refused additional peremptory strikes, and

(3) was then forced to take an identified objectionable juror whom appellant would

not otherwise have accepted had the trial court granted his challenge for cause (or

granted him additional peremptory strikes so that he might strike the juror). Id.

On appeal, Cerbantez neither argues that an identified objectionable juror sat

on the jury nor points us to relevant evidence in the record. Similarly, Cerbantez’s

brief does not cite any evidence supporting his contention that he exhausted all his

–3– peremptory strikes. Finally, our review of the record has revealed no evidence that

supports either prerequisite to preservation. Therefore, Cerbantez did not preserve

his alleged error. Buntion, 482 S.W.3d at 83. If an issue has not been preserved for

appeal, nothing is presented for appellate review. Rodgers v. State, No. 05-20-

00211-CR, 2022 WL 1076067, at *2 (Tex. App.—Dallas Apr. 11, 2022, no pet.)

(mem. op., not designated for publication) (citing Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012); Sterling v. State, 800 S.W.2d 513, 521 (Tex. Crim.

App. 1990) (“Generally, error must be presented at trial with a timely and specific

objection, and any objection at trial which differs from the complaint on appeal

preserves nothing for review.”)).

In a cross issue, the State argues we should reform the judgment to reflect the

age of the victim at the time of the offense. Cerbantez’s conviction was a reportable

conviction under Chapter 62 of the Code of Criminal Procedure. Compare TEX.

CODE CRIM. PROC. § 62.0051 (requiring sex offender registration for those with a

reportable conviction) with id. § 62.001(5)(A) (a reportable conviction includes

convictions for violations of Texas Penal Code section 21.02). Therefore,

Cerbantez’s judgment of conviction must include the victim’s age at the time of the

offense. Id. § 42.01(27). Despite this statutory requirement, the judgment states that

the age of the victim at the time of the offense was not applicable.

When a record contains the necessary information, we may modify an

incorrect judgment to correct clerical errors. TEX. R. APP. P. 43.2(b); Bigley v. State,

–4– 865 S.W.2d 26, 27 (Tex. Crim. App. 1993). Here, the victim testified that Cerbantez

began sexually assaulting her when she was seven and that he continued doing so

until she was 14. See TEX. PENAL CODE § 21.02(b). Because the record contains the

necessary information, we modify the judgment to reflect that “The age of the victim

at the time of the offense was 12.”

We affirm the judgment of the trial court as modified.

230432f.u05 Do Not Publish /Robert D. Burns, III/ TEX. R. APP. P. 47.2(b) ROBERT D. BURNS, III CHIEF JUSTICE

–5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ROSALINO GALARZA On Appeal from the 283rd Judicial CERBANTEZ, Appellant District Court, Dallas County, Texas Trial Court Cause No. F22-76471-T. No. 05-23-00432-CR V. Opinion delivered by Chief Justice Burns. Justices Reichek and Nowell THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we MODIFY the portion of the judgment that states “The age of the victim at the time of the offense was N/A” to state “The age of the victim at the time of the offense was 12.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 8th day of October, 2024.

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