Rigoberto Gallegos v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

RIGOBERTO GALLEGOS, )

) No. 08-05-00081-CR

Appellant, )

) Appeal from the

v. )

) 168th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D00997)

)

O P I N I O N

Rigoberto Gallegos was indicted for one count of aggravated sexual assault of a child ( Count I ) and two counts of indecency with a child. At the close of the State s case-in-chief, Appellant requested an instructed verdict as to Count I, which was granted. The jury found Appellant guilty of the indecency offenses, Counts II and III, as charged in the indictment and assessed punishment at 15 years imprisonment. Appellant raises four issues on appeal, in which he claims the State engaged in bad faith prosecutorial misconduct, argues that the trial court erred in denying his motion for new trial, and asserts the trial judge was not impartial and was motivated by bias throughout the trial process in violation of his due process rights. We affirm.

The complainant, Suinmey Alvarado, was twenty-three years old at the time of trial. She testified that when she was in the second grade, she and her mother lived with Appellant and his wife, Ms. Alvarado s maternal aunt, in El Paso, Texas. At the time, Ms. Alvarado s mother, Maria Licon, traveled to Albuquerque approximately one week each month for work. During the times when her mother was out of town, Appellant would come into Ms. Alvarado s bedroom at night and place her hand on his penis and masturbate, rub his penis against her, and touch her genitals. These events would happen every time her mother would go out of town. Ms. Alvarado was afraid of Appellant and did not tell any of her teachers. Eventually, she and her mother moved out of the shared apartment. However, Ms. Alvarado would still see Appellant at family gatherings which occurred about four times a year. Some years later, when Ms. Alvarado was in the fifth grade, she went to her grandmother s house and while her mother and aunt were away, Appellant came into the bedroom and penetrated her vagina with his fingers. Ms. Alvarado s grandmother lived in Juarez, Mexico. When her mother returned that night, Ms. Alvarado told her what had happened. Her mother then confronted her aunt, causing a rift in the family. Ms. Alvarado s stepfather later found out about the sexual abuse and stopped all visits and contact with Appellant and other family members. Ms. Alvarado suffered emotionally and later in life sought counseling. After speaking with a counselor, Ms. Alvarado filed a police report against Appellant.

Ms. Licon recalled the incident in Mexico, testifying that she returned to her mother s house to find her daughter crying in the bathroom. When she asked her what was wrong, Ms. Alvarado told her that Appellant had touched her. Ms. Licon confronted her sister, Appellant s wife, but she refused to believe the allegations. Because of family pressure, Ms. Licon never contacted the police. Ms. Licon confirmed that her mother s house is in Juarez, Mexico.

Appellant testified in his defense and denied ever touching Ms. Alvarado inappropriately. Family members and friends testified to their disbelief about the allegations and the lack of opportunity for Appellant to commit the offenses.

PROSECUTORIAL MISCONDUCT

In his first two issues, Appellant contends that the State prosecutors engaged in bad faith prosecutorial misconduct. First, Appellant asserts that the prosecutors committed prosecutorial misconduct in procuring Count I of the indictment, which they knew from the available evidence had allegedly occurred in Mexico, but they nevertheless did so as a trial tactic to inflame and prejudice the jury. Second, Appellant claims the prosecutors misled the trial court into committing fundamental error by remaining silent on the jurisdiction issue during the hearing on the motion to quash Count I. On appeal, Appellant asserts that the prosecutors conduct violated Rules 3.03 and 3.09 of the Texas Disciplinary Rules of Professional Conduct and tainted the entire trial process, which constitutes fundamental error not subject to any harm analysis.

Appellant filed a pretrial motion to quash Count I of the indictment, asserting that the trial court had no jurisdiction over the offense alleged in Count I because Brady exculpatory evidence showed that the alleged offense occurred in Cuidad Juarez, Mexico. At the motion hearing, defense counsel argued that the Brady evidence, namely Ms. Alvarado s statement to police, in which she alleged digital penetration occurred at her grandmother s house, and Ms. Licon s statement, in which she indicated her mother s house was in Juarez, showed as a matter of law that the trial court lacked territorial jurisdiction. The trial court, however, ruled that the issue of where the offense was committed was an issue to be decided by the trier of fact at trial. During the hearing, the trial court did not ask the State prosecutor to respond to defense counsel s assertions regarding the trial court s jurisdiction over Count I.

Prior to the start of trial, the State filed notice of intent to offer evidence of extraneous offenses, which included the acts alleged in Counts I, II, and III in the indictment. The State also filed notice of its intent to offer the outcry testimony of Ms. Licon. Ms. Alvarado and Ms. Licon testified without objection regarding the incident alleged in Count I. As previously noted, the trial court granted Appellant s motion for an instructed verdict of not guilty as to Count I. During cross-examination of Appellant, the trial court permitted the State to question Appellant about the incident in Mexico because notice had been given as an extraneous offense.

In the first prosecutor s closing argument, she noted that Count I was not before the jury because the evidence showed that it happened in Juarez, Mexico. Specifically, the prosecutor stated:

But I don t want you to think that you cannot consider the evidence of what happened in Mexico because under the law in a case like this, the entire relationship between the Defendant and the complainant is relevant. And you are entitled to consider it in considering the other two counts. But I didn t want you to think, oh, well, I know one of these happened in Mexico, so it s not right. The count that happened in Mexico is not part of this anymore and you don t have to worry about it, okay?

Likewise, the second prosecutor s closing argument stressed that Count I was no longer before the jury and not in the charge. The second prosecutor then stated:

And why? We cannot prosecute Mexican crimes. One, that doesn t mean that it didn t happen, and, two, that doesn t mean that you can t consider it to go towards the relationship that these people had and the evidence that it goes towards.

Defense counsel did not object to any of the above statements by the prosecutors.

Appellant was found guilty of Counts II and III and sentenced in open court on February 1, 2005. On February 7, Appellant filed a motion for new trial based solely on prosecutorial misconduct in procurement of Count I in the indictment. Appellant issued subpoenas for Assistant District Attorneys Rick Locke and Kevin Shulz to appear at the motion for new trial hearing set for March 11. On March 10, the trial court held a hearing on the State s motions to quash the subpoenas. At that hearing, Appellant s counsel conceded that the evidence of the Juarez incident was admissible as outcry testimony under Article 38.37 of the Texas Code of Criminal Procedure. Instead, defense counsel challenged only the prosecutors conduct in procuring the indictment and their defense and prosecution of Count I, for which they must have known there was no evidence that it occurred in El Paso County or Texas. At the motion for new trial hearing on the following day, the trial court granted the State s motion to quash the subpoenas. The trial court denied Appellant s motion for new trial, but permitted him to offer a bill regarding the procurement of Count I of the indictment.

We examine claims of prosecutorial misconduct on a case-by-case basis. Stahl v. State, 749 S.W.2d 826, 830 (Tex.Crim.App. 1988); Perkins v. State, 902 S.W.2d 88, 96 (Tex.App.--El Paso 1995, no pet.). For the first time on appeal, Appellant bases his claims of prosecutorial misconduct on alleged disciplinary rule violations by the State prosecutors. Pointing to the comments to Rule 3.09, which provide that a prosecutor s obligations to refrain from prosecuting a charge not supported by probable cause is satisfied by the return of a true bill by a grand jury unless the prosecutor believes material inculpatory information presented to the grand jury was false, Appellant argues that the grand jury prosecutor must have known that whatever jurisdictional and venue facts were relied upon by the grand jury for Count I had to be false. See Tex.Disciplinary R.Prof l Conduct 3.09 & cmt. 2, reprinted in Tex.Gov t Code Ann., tit. 2, subtit. G app. A (Vernon 2005)(Tex.State Bar R. art. X, 9). Appellant claims that prosecutors also violated Rule 3.03 because the State was not candid with the trial court at the pretrial motion to quash hearing in that the prosecutor failed to disclose a fact when disclosure was necessary and did thereby facilitate the commission of a fraudulent act, that is, leading the court to commit reversible error. See Tex.Disciplinary R.Prof l Conduct 3.03.

At no time in the trial court did Appellant ever allege that prosecutors had violated any disciplinary rules, thus Appellant s complaint on appeal does not comport with specific objections made in the trial court. See Tex.R.App.P. 33.1(a); Broxton v. State, 909 S.W.2d 912, 918 (Tex.Crim.App. 1995)(point of error must correspond to an objection made at trial). Regardless, violations of the disciplinary rules are not grounds for reversal of a criminal conviction unless the defendant can show the alleged disciplinary rule violation affected his substantial rights or deprived him of a fair trial. See House v. State, 947 S.W.2d 251, 252 (Tex.Crim.App. 1997), citing Brown v. State, 921 S.W.2d 227, 229-30 (Tex.Crim.App. 1996). If a defendant cannot show actual prejudice from an alleged disciplinary rule violation by the State, then he will not be entitled to relief on appeal. Id. at 253.

Here, the evidence presented at trial established that the penetration incident alleged in Count I occurred in Mexico, and thus the trial court granted Appellant s motion for an instructed verdict of not guilty and that count was not submitted to the jury. However, evidence of that penetration incident was admissible at Appellant s trial for the two indecency counts because the State gave notice of its intent to offer instances of digital penetration in its notice of extraneous offenses pursuant to Article 38.37 and gave notice of its intent to offer Ms. Licon s outcry testimony as to the penetration incident pursuant to Article 38.072. Appellant was cross-examined about the alleged digital penetration incident during his case-in-chief after the trial court ruled it was relevant and admissible under Article 38.37. Indeed, in post-trial proceedings, Appellant acknowledged that the evidence was admissible at trial. Moreover, without objection, State prosecutors in closing argument informed the jury that the penetration incident was relevant and could be considered as evidence bearing on the entire relationship between Appellant and the complainant. We conclude that Appellant has failed to show any actual prejudice due to the prosecutors conduct because Count I was removed from the indictment, the jury was instructed to consider only his guilt as to the two indecency counts, and the presentation of evidence was not significantly affected by the presence of Count I. Therefore, Appellant is not entitled to any relief due to the alleged violation of Disciplinary Rules 3.03 and 3.09.

To the extent that Appellant s complaint is based on alleged prosecutorial misconduct in the presentation of evidence to the grand jury, we note that the State has no duty to present exculpatory evidence to a grand jury. See United States v. Williams, 504 U.S. 36, 51, 112 S. Ct. 1735, 1744, 118 L. Ed. 2d 352 (1992); In re Grand Jury Proceedings, 129 S.W.3d 140, 143-44 (Tex.App.--San Antonio 2003, writ denied); Matney v. State, 99 S.W.3d 626, 629 (Tex.App.--Houston [1st Dist.] 2002, no pet.). If an indictment is valid on its face, such as in this case, we may not go behind the indictment to determine whether it was properly returned or to review alleged procedural errors in its presentment. DeBlanc v. State, 799 S.W.2d 701, 706 (Tex.Crim.App. 1990); Perkins, 902 S.W.2d at 101-02. Thus, it would be improper for this Court to evaluate the adequacy of the evidence presented to the grand jury. Moreover, there is simply no evidence in the record to support Appellant s claim that prosecutors misled the grand jury in its decision to return Count I in the indictment.

With regard to Appellant s complaints concerning the trial tactics of the prosecutors, in particular, the prosecutors closing jury arguments, we find that Appellant has failed to preserve these complaints because he raised no objection at trial. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996)(defendant s failure to object to a jury argument forfeits his right to complain about the argument on appeal).

Lastly, Appellant asserts that the alleged prosecutorial misconduct in this case was to such a degree that it tainted the entire trial process and thus, constitutes structural or fundamental constitutional error that is not subject to any harm analysis. However, acts of nonjudicial misconduct, including misconduct by the prosecutor, are subject to a harm analysis unless the misconduct amounted to the complete denial of counsel for the defendant. See Johnson v. State, 169 S.W.3d 223, 229-30 (Tex.Crim.App. 2005), cert. denied, 126 S. Ct. 1355, 164 L. Ed. 2d 66 (2006); see also Cain v. State, 947 S.W.2d 262, 264 (Tex.Crim.App. 1997)( Except for certain federal constitutional errors labeled by the United States Supreme Court as structural, no error . . . is categorically immune to a harmless error analysis. ).

Finding no error, no showing of any misconduct by the prosecutors that rises to the level of fundamental error, and no actual prejudice from the violation of any disciplinary rule, we overrule Issues One and Two.

MOTION FOR NEW TRIAL

In Issue Three, Appellant argues the trial court erred in denying his motion for new trial. Specifically, Appellant asserts the trial court applied the wrong statute in identifying the permissible grounds for a new trial. Denial of a motion for new trial is reviewed under the abuse of discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex.Crim.App. 2001).

A motion for new trial must be filed no later than thirty days after sentence is imposed in open court. Tex.R.App.P. 21.4(a). A motion for new trial cannot be amended after thirty days, even with leave of the court. Drew v. State, 743 S.W.2d 207, 222-23 (Tex.Crim.App. 1987); Dugard v. State, 688 S.W.2d 524, 530 (Tex.Crim.App. 1985), overruled on other grounds by Williams v. State, 780 S.W.2d 802, 803 (Tex.Crim.App. 1989); Belton v. State, 900 S.W.2d 886, 902 (Tex.App.--El Paso 1995, pet. ref d). Untimely amended motions for new trial cannot form the basis for an issue on appeal, even if the original motion for new trial is timely. Dugard, 688 S.W.2d at 529-30; Webb v. State, 109 S.W.3d 580, 581 (Tex.App.--Fort Worth 2003, no pet.).

Appellant was sentenced on February 1, 2005. Appellant s motion for new trial was timely filed on February 7, 2005. On March 11, the same date of the motion for new trial hearing, Appellant filed an amended motion for new trial. Appellant s amended motion for new trial was untimely filed and thus, the trial court was only authorized to consider issues raised in the original motion for new trial.

Appellant complains that the trial court erroneously applied Article 40.001 of the Texas Code of Criminal Procedure in ruling on his motion for new trial because the offenses were allegedly committed before the effective date of the statutory provision. Article 40.001 provides that [a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial. See Tex.Code Crim.Proc.Ann. art. 40.001 (Vernon Supp. 2006). We observe that courts have held that former Tex.R.App.P. 30(b)(6) is virtually identical to Article 40.001 and the same analysis would apply. See Hackleman v. State, 919 S.W.2d 440, 452-53 & n.1 (Tex.App.--Austin 1996, pet. ref d, untimely filed), citing Moore v. State, 882 S.W.2d 844, 849 (Tex.Crim.App. 1994); Ashcraft v. State, 918 S.W.2d 648, 653 (Tex.App.--Waco 1996, pet. ref d)(Article 40.001 is essentially a combination of Rule 30(b)(6) and its predecessor, former Article 40.03(6) of the Code of Criminal Procedure, the current statute has been applied using the same analysis used to decide cases under the former provisions); see also Lyon v. State, 885 S.W.2d 506, 518 n.10 (Tex.App.--El Paso 1994, pet. ref d)(applying former Rule 30(b)(6) where appellant was convicted of an offense committed prior to the effective date of Article 40.001). Therefore, the trial court did not apply the wrong standard in determining whether to grant a new trial. // Issue Three is overruled.

IMPARTIAL JUDGE

In his fourth issue, Appellant asserts that the trial judge was biased against him and in favor of the prosecution as evinced by the judge s rulings and comments. Appellant claims the court s alleged bias violated his due process rights and constitutes fundamental error. As evidence of bias, Appellant points to the following instances:

(1)the trial court denied his motion to quash Count I and stated defense counsel could not proceed at this time on that issue;

(2)the trial court failed to ask the prosecutor for his views on Count I during the hearing on the motion to quash Count I;

(3)the trial court s observation at the March 10 hearing that it would have quashed Count I had it been made clear at the motion to quash hearing that the penetration incident alleged in Count I occurred in Mexico;

(4)the trial court s discussion of its recollection of the trial evidence during the post-trial hearing on the motion to quash the subpoenas, in which the court commented on the confusion as to the dates and locations of the alleged incidents, stated that the victim had gone through years of therapy before filing her complaint, and observed that the evidence of the event in Juarez would have been admissible as the outcry event; and

(5)the trial court applied the wrong standard in denying his motion for new trial.

Appellant did not object to any of the trial court s rulings or its comments on the basis of judicial bias or prejudice by the court. Failure to raise a contemporaneous objection generally results in failure to preserve error for appellate review. See Tex.R.App.P. 33.1(a); see also Brewer v. State, 572 S.W.2d 719, 721 (Tex.Crim.App. 1978)(where no objection is made, remarks and conduct of the court may not be subsequently challenged unless they are fundamentally erroneous). Appellant contends, however, that he was severely prejudiced by a trial riddled with fundamental and structural error, that no instruction could have cured the error. We construe Appellant s contention to be that the rulings and statements by the trial judge were fundamental error, and therefore, he was not required to object in order to preserve error.

The United States Supreme Court has identified trial before a trial judge who is not impartial as structural error that is categorically immune from harm analysis. See Johnson, 169 S.W.3d at 235; High v. State, 964 S.W.2d 637, 638 (Tex.Crim.App. 1998). In Blue v. State, 41 S.W.3d 129 (Tex.Crim.App. 2000)(plurality op.), a plurality of the Court held that the comments of the trial judge, which tainted the defendant s presumption of innocence before the venire, were fundamental error of constitutional dimension and required no objection. Blue, 41 S.W.3d at 132 (Johnson, J., joined by Mansfield, Price, and Holland, JJ.). We first note that a plurality opinion is not binding precedent. See Jasper v. State, 61 S.W.3d 413, 421 (Tex.Crim.App. 2001)(acknowledging Blue as a plurality opinion that the court was not bound to follow). Even if Blue were binding, we conclude from our review of the record that none of the court s comments or rulings in this case rise to the level of fundamental error, in particular, we observe that none of the complained-of conduct adversely affected Appellant s right to a fair trial or improperly influenced the jury. Therefore, by failing to object to judicial bias during trial proceedings, he has waived any error. Issue Four is overruled.

The trial court s judgment is affirmed.

November 16, 2006

DAVID WELLINGTON CHEW, Chief Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.)

Barajas, C.J. (Ret.), Sitting by assignment, not participating

(Do Not Publish)