Carlos Gomez v. The State of Texas--Appeal from 248th District Court of Harris County

OPINION
No. 04-03-00261-CR
Carlos GOMEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 248th Judicial District Court, Harris County, Texas
Trial Court No. 922885
Honorable Woody Denson, Judge Presiding

Opinion by: Paul W. Green, Justice

Concurring opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: August 18, 2004

AFFIRMED

Appellant Carlos Gomez was charged with the felony offense of aggravated robbery to which he pled not guilty. Following a jury trial, he was convicted of the crime and sentenced to twenty-five years' imprisonment. Gomez now appeals his conviction in two issues.

Background

On August 31, 2002, appellant Carlos Gomez was charged with the felony offense of aggravated robbery. A trial was conducted on Gomez's plea of not guilty. At trial, the State presented evidence that Gomez and another individual had entered a 99 Store carrying firearms. The two men made several individuals, including the owner of the store and several patrons, lie on the ground. They then took money and personal items from the store and from several of the people being held at gunpoint. Gomez was taken into custody by the Houston Police Department while he was still in the store. Following the guilt/innocence phase of the trial, the jury found Gomez guilty of the charged offense.

During the punishment phase of the trial, the State introduced evidence showing various extraneous offenses allegedly committed by Gomez, including two separate aggravated robberies and an aggravated assault on his brother. On cross examination, the victim of one of the robberies, a friend of Gomez's, admitted that he had not been in fear of Gomez during the robbery in spite of the fact that Gomez was carrying a knife when he demanded money. In addition, in response to the State's evidence, several of Gomez's friends and family members testified on his behalf. He also testified in his own defense. At the close of the evidence, the court sentenced Gomez to twenty-five years' imprisonment based on a jury verdict. Gomez now appeals the trial court's ruling.

Jury Charge Error

In his first issue, Gomez contends the trial court erred in failing to charge the jury pursuant to Texas Code of Criminal Procedure article 37.07, section 3(a). This section of the Code of Criminal Procedure prohibits a jury from considering evidence of uncharged crimes during the punishment phase of a non-capital trial unless the jury first determines beyond a reasonable doubt that the defendant committed the crimes. Tex. Code. Crim. Proc. Ann. art. 37.07 3(a)(1); Huizar v. State, 12 S.W.3d 479, 484-85 (Tex. Crim. App. 2000). If such extraneous evidence is presented during a trial's punishment phase, the Code of Criminal Procedure mandates that the court instruct the jury not to consider the extraneous offense evidence unless it finds beyond a reasonable doubt that the defendant committed the offenses. Huizar, 12 S.W.3d at 484. This instruction is mandatory; its omission is error even if the defendant does not request the instruction or object to its absence. Id. A trial court's failure to give the instruction must be analyzed as jury charge error under the Almanza standard. Id. at 484-85; Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).

Under Almanza, we review jury charge error based on whether the defendant preserved the error at trial. Huizar v. State, 29 S.W.3d 249, 251 (Tex. App.--San Antonio 2000, pet. ref'd). If the defendant does not object to the omission, we apply an egregious harm standard. Id. Under this standard, a reviewing court must review the entire record to determine if the harm was so egregious that appellant failed to receive a fair and impartial trial. See Huizar, 12 S.W.3d at 484-85.

On appeal, Gomez argues that the egregious harm standard should be applied in the case at hand because he did not object to the trial court's failure to include the article 37.07 instruction in the jury charge. The State, however, contends that Gomez has waived any objection he might have to jury charge error because he affirmatively stated that he had no objection to the trial court's charge.

Texas appellate courts are split when deciding the issue of whether an affirmative approval of a jury charge results in waiver. There is some support for the proposition that an affirmative statement by the appellant, approving the jury charge serves as a waiver. See e.g., Turner v. State, 101 S.W.3d 750, 756 (Tex. App.--Houston [1st Dist.] 2003, pet. ref'd); Reyes v. State, 934 S.W.2d 819, 820 (Tex. App.--Houston [1st Dist] 1997, pet. ref'd). However, other courts have found even an approval of the charge to require further analysis under the egregious harm standard, concluding that allowing a defendant to affirmatively waive jury charge error is completely inconsistent with Almanza. See, e.g., Bluitt v. State, 70 S.W.3d 901, 905 (Tex. App.--Ft. Worth 2002, no pet.); Webber v. State, 29 S.W.3d 226, 232-33 (Tex. App.--Houston [14th Dist.] 2000, pet ref'd).

In the past, this Court has followed the reasoning of the latter group, finding a defendant's approval of a jury charge to fail to constitute waiver. See Sierra v. State, 2003 WL 1973159 (Tex. App.--San Antonio 2003). We now affirm our earlier decision, reiterating that there is no distinction between a defendant's affirmative approval of a jury charge and his failure to object to a jury charge in terms of harm analysis. Therefore, because of Gomez's express approval, we will analyze this charge under an egregious harm standard.

Egregious harm includes errors: (1) affecting the case's foundation; (2) denying the defendant a valuable right; (3) significantly affecting a defensive theory; or (4) making the case for guilt or punishment clearly and substantially more compelling. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Saunders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). Direct evidence is not required to establish such harm. Hutch, 922 S.W.2d at 171. In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the entire record. Id. To be entitled to a reversal, however, a defendant must show actual harm. Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App. 1999).

After reviewing the record of Gomez's trial as a whole, we cannot conclude that he was denied a fair and impartial trial. Although Gomez contends on appeal that the jury was more likely to consider and give weight to his extraneous offenses absent the trial court's instruction, he fails to deny his guilt or otherwise challenge any of the extraneous offenses. Cf. Ellison v. State, 97 S.W.3d 698, 701(Tex. App.--Texarkana 2003, no pet.) In addition, Gomez's sentence is well within the statutory range of punishment for an aggravated robbery conviction. In spite of the State's request that the jury assess punishment at a minimum of 40 years and in spite of the statutory range of punishment of 5 to 99 years imprisonment and up to a $10,000 fine, the jury chose to sentence Gomez to only 25 years in prison and imposed no fine. Under these circumstances, we conclude that the court's failure to instruct the jury regarding the State's burden of proof at the punishment stage did not cause Gomez egregious harm and had little, if any, effect on the punishment assessed. See Tabor v. State,88 S.W.3d 783, 788-89 (Tex. App.--Tyler 2002, no pet.); Huizar, 29 S.W.3d at 251. We overrule Gomez's first issue.

Hearing on Motion for New Trial

In his second issue, Gomez argues the trial court erred in failing to conduct a hearing on his motion for new trial. Specifically, he contends he was entitled to a hearing because his motion for new trial raised a matter not determinable from the record. We review a trial court's denial of a hearing on a motion for new trial for abuse of discretion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993); Bouldin v. State, 100 S.W.3d 355, 356 (Tex. App.--San Antonio 2002, no pet.). The purpose of such a hearing is to allow a defendant an opportunity to develop matters raised in his or her motion. Martinez v. State,74 S.W.3d 19, 21 (Tex. Crim. App. 2002). However, the right to a hearing on a motion for new trial is not absolute. Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993); Bouldin, 100 S.W.3d at 356. A trial court abuses its discretion in failing to conduct a hearing only when a motion for new trial raises matters not determinable from the record. Reyes, 849 S.W.2d at 816. The motion must also be accompanied by an affidavit supporting the assertion that the motion raises matters which are not determinable from the record. Id. The affidavit may be from the accused or someone else specifically showing the truth of the grounds of attack. Id.

In his motion for new trial, Gomez raises two issues, the first relating to the lack of jury instruction and the second complaining of ineffective assistance of counsel. On appeal, Gomez argues that a hearing on his motion for new trial was necessary to fully develop the latter argument. Specifically, Gomez contends that he spoke only Spanish, and his counsel spoke only English, leading to a lack of communication which was detrimental to him at trial.

Gomez attaches two affidavits to his motion. The first affidavit is from his appellate attorney, stating that the facts contained in Gomez's motion are "true and correct to the best of [her] knowledge." The second affidavit is from Gomez's mother, Ester Fajardo. Fajardo's affidavit states that Gomez was born in El Salvador and came to the United States at the age of fifteen. She also states that Gomez knows a few words in English but is in no way fluent, that he cannot read or write in English, and that he is "unable to communicate at all in English." In addition, Fajardo's affidavit states that neither she, her husband, nor her other son, all of whom served as witnesses for Gomez, are able to speak English and that Gomez's trial attorney failed to communicate with the family or with Gomez, himself, regarding the case. There was no affidavit from Gomez or from Gomez's trial attorney attached to the motion.

At a hearing on a motion for new trial, the trial court may receive evidence by affidavit or otherwise. Tex. R. App. P. 21.7; Gill v. State, 111 S.W.3d 211, 214 (Tex. App.--Texarkana 2003, no pet.); Scaggs v. State, 18 S.W.3d 277, 281 (Tex. App.--Austin 2000, pet. ref'd). In the present case, the trial court failed to set the motion for an evidentiary hearing, instead crossing out the applicable paragraph on the order and writing in "to be done by affidavit." On appeal, the State contends that Gomez has waived his right to an evidentiary hearing on his motion for new trial because he failed to request such a hearing or to object when the trial court mandated the motion was to be done by affidavit. In order to preserve error for appellate review, an appellant must make a timely objection, state the grounds for the objection, and secure a ruling on the record from the trial court. Tex. R. App. P. 33.1. Gomez, however, did not object to the trial court's decision not to hear oral testimony. As a result, he has presented nothing for appellate review, and we overrule his second issue.

The judgment of the trial court is affirmed.

Paul W. Green, Justice

Do Not Publish