Frank Navarijo v. The State of Texas--Appeal from 186th Judicial District Court of Bexar County

No. 04-99-00833-CR
Frank NAVARIJO,
Appellant
v.
The STATE of Texas,
Appellee
From the 186th Judicial District Court, Bexar County, Texas
Trial Court No. 98-CR-4635
Honorable Samuel Katz, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice

Sarah B. Duncan, Justice

Delivered and Filed: May 9, 2001

AFFIRMED

Frank Navarijo appeals his sentence and conviction for aggravated sexual assault of a child. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Frank Navarijo was indicted for aggravated sexual assault of A.N., a child. A jury found him guilty and sentenced him to twenty years imprisonment and assessed a $10,000 fine. Navarijo filed a motion for new trial, which was denied after a hearing. Navarijo appealed.

Hearsay Objection

In points of error one and two, Navarijo contends the trial court reversibly erred in overruling his hearsay objection to State witness Enola Lemelle's testimony that on January 9, 1998, A.N.'s grandmother told her she thought A.N. had been sexually abused by her father and A.N. told her that her father, Navarijo, had touched her vaginal area and had been doing so for a long time. We disagree.

Discussion

"Whether or not the testimony complained of was admissible as an exception to the hearsay rule is irrelevant. If the fact to which the hearsay relates is sufficiently proved by other competent and unobjected to evidence ... the admission of the hearsay is properly deemed harmless and does not constitute reversible error." Anderson v. State, 717 S.W.2d 622, 627 (Tex. Crim. App. 1986). Before Lemelle testified, Navarijo called Child Protection Services caseworker, Amanda Way, as a witness. Way testified that A.N. told her Navarijo had touched her. Way further testified A.N. indicated where she had been touched by pointing to her vagina. This testimony is substantially similar to the testimony Navarijo contends was improperly admitted over his hearsay objection. Therefore, admission of Lemelle's testimony was harmless. Points of error one and two are overruled.

Production of Witness Statements

In his third point of error, Navarijo contends the trial court erred in denying his request to examine notes made by Dr. Nancy Kellogg, an expert witness for the State. According to Navarijo, the court's refusal to order the State to produce the notes for examination by the defense violated Rule 615 of the Texas Rules of Evidence. We disagree.

"Under the provisions of Rule [615], ... a trial court, upon timely request by the accused, must order the attorney for the State to produce such statement if it relates to the subject matter to which the witness testified." Marquez v. State, 757 S.W.2d 101, 103 (Tex. App.-San Antonio 1988, pet. ref'd) (emphasis added). In this case, Kellogg's notes were not related to the subject matter of her testimony. Rather, the notes contained specific questions she recommended the State ask of Navarijo's expert witness. Therefore, the trial court did not err in denying Navarijo's request to examine Kellogg's notes. See Tex. R. Evid. 615. The point of error is overruled.

Jury Argument

In his fourth point of error, Navarijo argues the trial court erred in overruling his objection to the State's closing argument during the guilt/innocence phase of the trial. Navarijo contends the State impermissibly argued outside the record. In response, the State concedes that the argument complained of was outside the record and therefore improper but contends that the error was harmless. We agree with the State and hold that the error does not warrant reversal.

Applicable Law

To be considered proper, "jury argument must fall within one of the following four categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; or (4) plea for law enforcement." Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992), cert. denied, 509 U.S. 927 (1993). Argument outside these areas constitutes error, but an instruction to disregard will generally cure the error. Dinkins v. State, 894 S.W.2d 330, 357 (Tex. Crim. App.), cert. denied, 516 U.S. 832 (1995).

Discussion

The prosecutor made the following comment during the State's closing argument in the guilt/innocence phase:

Ms. Huntzinger told you, during her closing arguments, that - talking about A.N., where you go to court school and you tell your story one more time. As if the - telling you directly that A.N. go - went to court school and she told people at court school her testimony. She talked about the allegations in this case and she talked about what Frank did to her. Well, that invites this argument. She is the godmother of the person that created the court school, and she knows full well -

While this particular portion of the prosecutor's closing argument was apparently made in response to defense counsel's reference to A.N. preparing for trial by attending "court school," the prosecutor's comment about defense counsel being "the godmother of the person that created the court school" exceeded the bounds of permissible rebuttal. See Dinkins, 894 S.W.2d at 357. However, the comment was a single isolated remark in the prosecutor's lengthy closing argument and the prosecutor made no further comments such as this. See id. In addition, the trial court had previously instructed the jury that arguments by counsel were not evidence. We therefore hold the error was harmless and overrule Navarijo's fourth point of error.

Jury Instruction

In his fifth point of error, Navarijo maintains that the trial court's instruction regarding the award of good time credit was misleading and failed to apply the law to the case. As a result, Navarijo argues he suffered egregious harm. We disagree.

At trial, Navarijo did not object to the charge. Therefore, Navarijo has the burden of demonstrating he suffered egregious harm as a result of the charge error. Jimenez v. State, 32 S.W.3d 233, 235-38 (Tex. Crim. App. 2000); Abnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994). We will not reverse the judgment "unless it appears from the record that [Navarijo] has not had a fair and impartial trial." Jimenez, 32 S.W.3d at 238. In determining the actual degree of harm, we consider "'the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.'" Bailey v. State, 867 S.W.2d 42, 43 (Tex. Crim. App. 1993) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App 1984)).

After reviewing the record of Navarijo's trial, we cannot conclude that Navarijo was denied a fair and impartial trial. Navarijo was only sentenced to twenty years despite the State's plea for a sentence of forty-five years or more. The twenty year sentence is well within the range of punishment for aggravated sexual assault, the maximum of which is ninety-nine years. Moreover, neither the State nor defense counsel referred to the instruction or the effect of good time credit during closing arguments. Finally, while Navarijo argues "it is likely that the jury assessed a more severe sentence than it otherwise would have in the erroneous belief that [he] could receive time off for good behavior," there is no evidence the jury violated the court's instruction to not consider "the extent to which good conduct time may be awarded to or forfeited by this particular defendant." We therefore conclude the error, if any, was harmless and overrule the point of error.

Response to Jury Note

In his final point of error, Navarijo argues that the trial court's response to a jury note during the punishment phase of the trial misstated the law on conditions of probation for sex offenders. We disagree.

Discussion

During the punishment phase, Navarijo called probation officer Richard Miles. Miles testified regarding the basic probation conditions that apply generally to all defendants and the additional conditions that apply specifically to sex offenders. While deliberating, the jury sent a note, asking whether the conditions that apply specifically to sex offenders were mandatory or optional. Over Navarijo's objection, the court provided the following response:

You are not to concern yourselves with the conditions of community supervision (probation). You are, however reminded, that conditions of community service (probation), in their entirety, are set by the Court. Please continue your deliberations.

The trial court arrived at this response, reasoning that while it was within the jury's province to recommend probation, it was wholly within the court's province to set the conditions of probation regardless of whether the conditions were mandatory or optional. Navarijo, however, maintained the court's response was in effect no response at all because it did not address the jury's specific question - whether the conditions that apply to sex offenders are mandatory or optional. On appeal, Navarijo argues the court not only erred in failing to inform the jury of the law applicable to the case but also erred in misstating the law by instructing the jury that the conditions of probation "in their entirety, are set by the Court." We disagree.

Whether requested or not, a trial court is not required to include in its charge to the jury a list of statutory terms and conditions a defendant would face if the jury recommended probation. Cagle v. State, 23 S.W.3d 590, 594-95 (Tex. App.-Fort Worth 2000, pet. filed) (citing Yarbrough v. State, 779 S.W.2d 844, 845 (Tex. Crim. App. 1989)). Thus, we see no reason why a court's failure to inform a jury that some conditions of probation are statutorily mandated while others are determined by the court would constitute error. We therefore overrule Navarijo's final point of error and affirm the judgment of the trial court.

Sarah B. Duncan, Justice

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