Raul Morales, Jr. v. The State of Texas--Appeal from 226th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00342-CR
Raul MORALES Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 97CR2403
Honorable Phil Chavarria, Jr., Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Paul W. Green, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: November 19, 2003

AFFIRMED

Raul Morales Jr. was convicted of sexual assault with a minor child and indecency with a child by contact and was sentenced to sixty-five years imprisonment. Morales brings three issues on appeal. We overrule all issues and affirm the judgment of the trial court.

Background

Morales's then fifteen-year-old niece, R.A., accused Morales of assaulting her on three separate occasions. R.A., Morales, Morales's nine-year-old daughter, and R.A.'s grandmother all lived in the same home. At trial, R.A. testified that shortly after moving into the home in September of 1996, she was attacked by Morales for the first time. R.A. was in her bedroom applying lotion to her legs when Morales walked into her room. Morales took the lotion away from R.A., rubbed the lotion on her legs, pulled up her blouse, and kissed her breasts. When Morales left, he told R.A. not to tell anyone or he would kill her. According to R.A., the second time Morales attacked her, she was sleeping in her bed at night. Morales came into her room, climbed on top of her, and kissed her bare chest. During the assault, Morales ordered R.A. to be quiet; he then told R.A., "You know you like it." He then left the room.

On the night of October 27, 1996, Morales attacked R.A. for the third and final time. There had been a party at R.A.'s home during which many of the adults, including Morales and R.A.'s uncle, Ralph, consumed alcohol. By 12:30 a.m., everyone had left the party save R.A., Morales, and Ralph. R.A.'s grandmother and her cousin were already asleep in bed. While R.A. was in her bedroom getting ready for bed, Morales again attacked her and kissed her bare breasts. R.A. retreated to the family room and told her Uncle Ralph that Morales had assaulted her. Ralph, however, passed out on the couch in the living room and did nothing to intervene. Morales threw R.A. on a sofa, kissed her yet again on her chest, and then had vaginal intercourse with her while she resisted. According to R.A., Morales held a knife to her throat while he raped her and stifled her cries with a hand over her mouth. He threatened to kill R.A. if she told anyone. The next day at school, R.A. told an attendance clerk, a school counselor, and a child protective case worker about the assault.

Extraneous Offenses

In his first issue, Morales argues that he timely requested notice from the State of its intent to introduce evidence of extraneous offenses and that the State failed to so notify. (1) Morales titled his pleading "Request for Notice of Extraneous Matters" and directed the pleading "To the Honorable Judge of Said Court." In the body of the pleading, Morales "makes a timely request for reasonable notice in advance of trial of the State's intent to introduce during the case-in-chief on guilt/innocence any evidence of crimes, wrongs, or acts other than those arising in the same transaction of the charged offense(s)." Attached to the pleading is a proposed order for the trial court:

On this the ______ day of ____________ [year], came to be heard Defendant's Request for Notice of Extraneous Matters, and the Court having considered the same hereby:

(GRANTS said motion)

(DENIES said motion, to which action of the Court the Defendant excepts).

A proper request under rule 404(b) "plainly requires a 'timely request' of the State that it give 'reasonable notice' prior to trial of its intent to offer evidence of certain extraneous" offenses. Espinosa v. State, 853 S.W.2d 36, 38 (Tex. Crim. App. 1993) (quoting rule 404(b)). (2) The request should be in writing and served on the prosecution. Id. Such a notice is self-executing; no action is needed by the trial court. Id.

If the defendant, however, files a motion requesting court action, the State's duty to provide reasonable notice of its intent to introduce certain extraneous offenses is not triggered until the trial court rules on the motion. Mitchell v. State, 982 S.W.2d 425, 427 (Tex. Crim. App. 1998); Espinosa, 853 S.W.2d at 39. Although Morales titled his document a "Request," it was substantively a motion to the court, requesting the court to order the State to give the requisite notice. See Valle v. State, 950 S.W.2d 413, 415 (Tex. App.--Houston [1st Dist.] 1997, pet. ref'd) (holding "Defendant's Request for Notice of State's Intention to Introduce Evidence of Other Crimes, Wrongs or Acts" was substantively a motion to the court to order the State to give requisite notice); President v. State, 926 S.W.2d 805, 807-08 (Tex. App.--Austin 1996, pet. ref'd) (same). The pleading was directed to the "Honorable Judge of Said Court." And, attached to the pleading was a proposed order for the trial court. When a document seeks trial court action, it cannot also serve as a request for notice triggering the State's duty under section 3(g) of article 37.07. Mitchell, 982 S.W.2d at 427. Morales's "Request" is therefore a motion, not a self-executing request, for notice. Simpson v. State, 991 S.W.2d 798, 801 (Tex. Crim. App. 1998). And, because Morales did not obtain a ruling on his motion, the notice requirements were not triggered. Id. We, therefore, overrule Morales's first issue. (3)

Motion for Mistrial

In his second issue, Morales argues that the trial court erred in denying a motion for mistrial after a witness testified that Morales was under the influence of drugs at the time of the offense. At trial, R.A.'s father testified that a few months after the offense, he talked to Morales about R.A.'s allegations:

R.A.'s Father: So I spoke to [Morales]. I got the phone and I went to the back yard and I had my Bible with me and I went to the back yard and I started asking him, you know, why did he do whatever, you know, [R.A.] was accusing him of doing. And he said, you know, at first he was denying it, denying it and denying it, so I started talking to him, well, why did you get--you know, start doing drugs again, and stuff like that, I started talking to him...

Garcia: Excuse me, Judge. I object to that. That is clearly a violation of a motion in limine.

Court: Sustained.

Garcia: I am going to ask for an instruction for the jury to disregard.

Court: I am going to instruct the jury to disregard that last remark.

Garcia: And I move for a mistrial.

Court: I'll deny it.

(emphasis added).

It is axiomatic that motions in limine do not preserve error. Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988); Harnett v. State, 38 S.W.3d 650, 655 (Tex. App.--Austin 2000, pet. ref'd). This is true whether the motion is granted or denied. Harnett, 38 S.W.3d at 655. A ruling on a motion in limine does not purport to be one on the merits but one regarding the administration of the trial. Harnett, 38 S.W.3d at 655. The remedy for a violation of a ruling on a motion in limine rests with the trial court. Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972); Harnett, 38 S.W.3d at 655. The trial court may hold the litigant or attorney in contempt or use other remedies or sanctions. Brazzell, 481 S.W.2d at 131; Harnett, 38 S.W.3d at 655. Even if there has been a violation of the order on the motion in limine, it is incumbent that a party object to the admission or exclusion of evidence or other action in order to preserve error for appeal. Brazzell, 481 S.W.2d at 131; Harnett, 38 S.W.3d at 655.

Here, Morales objected to a claimed violation of the order granting the motion in limine, not to the admission of evidence. Harnett, 38 S.W.3d at 655. By doing so, Morales failed to preserve error for appeal. Tex. R. App. P. 33.1; Harnett, 38 S.W.3d at 655.

Even if Morales had preserved this issue for appeal, we cannot say that the trial court abused its discretion in denying Morales's motion for mistrial. See Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (reviewing trial court's denial of mistrial for abuse of discretion). The determination of whether a given error necessitates a mistrial must be made by examining the particular facts of the case. Id. A mistrial is only required when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jury. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999). Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000).

Here, the trial court promptly instructed the jury to disregard R.A.'s father's statement, and the statement of drug use was an isolated one. Moreover, during the trial, there were numerous unobjected to references to Morales drinking or being inebriated at the time of the offense. After reviewing the record, we cannot say that the trial court abused its discretion in denying the motion for mistrial. We overrule Morales's second issue.

Outcry Statement

In his final issue, Morales argues that the trial court erred when it denied Morales's motion for mistrial after two prosecution witnesses testified about the contents of the outcry statement. According to Morales, these references to R.A.'s outcry statement were inadmissible hearsay.

During opening statement, the prosecutor said the following:

What is important, ladies and gentlemen, is [R.A.] had been attending school here, middle school, when all of this occurred and she got to know the attendance clerk very well, named Rebecca Delgado, because [R.A.] was tardy. So, the attendance clerk knows her well. On one particular day, which is October 2[8], 1996, [R.A.] shows up late for school as usual, but this time she is very different. She is crying. She's upset. Ms. Delgado doesn't really know what is going on with her, [so] she asks [R.A.] what is the problem[]. That is when [R.A.] discloses to her a sexual assault.

(emphasis added). Morales's attorney then objected, arguing that because R.A. was over twelve years of age, her statement is not admissible as an outcry statement. The trial court ruled that the State could admit evidence as to the fact that R.A. made an outcry statement, but no evidence could be admitted as to what the contents of the outcry statement were.

Morales complains that despite this ruling, the State later introduced evidence of R.A.'s outcry statement through Rebecca Delgado's testimony:

A: [Looking at a document] That is my handwriting. . . . Everything that [R.A.] told [] me I wrote down.

Q: This is the letter that you wrote in reference to the problem that [R.A.] came to you with.

A: Yes.

Q: Would it help you to see this letter and determine what date she came to you?

A: Uh-huh.

Q: Now do you recall what date this occurred on?

A: Yes.

Q: What date was that?

A: . . . October 2[8], 1996.

Q: Okay. And can you tell the jury what [R.A]'s demeanor was when she was telling you about this problem?

A: That she had been raped.

Morales's attorney objected to hearsay, and the trial court sustained the objection. Morales then moved for an instruction to disregard the witness's statement. The trial court so instructed. Morales then moved for a mistrial, which the trial court denied.

In addition, Morales complains of testimony given by Esmeralda Higginbotham, a social worker for Child Protective Services:

Q: Did [R.A.] give you a verbal statement?

A: Yes.

Q: Did you follow up by collecting a written statement?

A: Yes.

Q: To your recollection, were they consistent?

A: Yes.

Q: Okay. In her oral statement to you, did she mention anything about a knife?

A: Yes, she did.

Q: In her written statement, did she mention anything about a knife?

At this point, Morales's attorney objected to hearsay, and the trial court sustained the objection. Upon Morales's attorney's request, the trial court instructed the jury to disregard. Morales then moved for a mistrial, which the trial court denied.

We review the trial court's denial of a mistrial under an abuse of discretion standard. Ladd, 3 S.W.3d at 567. As noted previously, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses. Ovalle, 13 S.W.3d at 783. The trial court here promptly instructed the jury to disregard Delgado's and Higginbotham's testimony. And as discussed below, there were unobjected to references to Morales having a knife during the alleged assault and the alleged assault itself. Reviewing the record, we hold that the trial court did not abuse its discretion in denying the motion for mistrial.

Further, it is well-established that the improper admission of evidence does not constitute reversible error if the same facts are proved by other properly admitted evidence. Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986); Aguilera v. State, 75 S.W.3d 60, 68 (Tex. App.--San Antonio 2002, pet. ref'd); see Tex. R. App. P. 44.2(b) (stating standard for non-constitutional harmless error). Here, the prosecutor questioned R.A. without objection about references to knives in her written statement and about the alleged assault.

Moreover, even if R.A.'s statements to Delgado and Higginbotham were not admissible under art. 38.07 and were hearsay, any error in admitting such testimony was cured when R.A. testified to the same statements on both direct and cross-examination. Morales v. State, 727 S.W.2d 101, 104 (Tex. App.--San Antonio 1987, pet. ref'd); Heckathorne v. State, 697 S.W.2d 8, 13 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd). "The rationale for the exclusion of hearsay involves the fear of unreliability stemming from the lack of opportunity for opposing counsel to cross-examine the author of the out-of-court statements and lack of opportunity for the jury to observe the demeanor of this person during testimony under oath." Heckathorne, 697 S.W.2d at 13. Here, however, this rationale does not apply as R.A. testified at trial and was available throughout the trial for further examination before a jury capable of observing her demeanor and assessing her credibility. Id. Therefore, the usual reason for excluding these statements was not present in this case. Id.

For these reasons, we overrule Morales's third issue.

Conclusion

Having overruled all issues, we affirm the judgment of the trial court.

Karen Angelini, Justice

Do not publish

1. The clerk's record originally did not contain a copy of Morales's "Request for Notice of Extraneous Matters." In its brief, the State argued that Morales did not properly request notice of extraneous matters. In his reply brief, Morales claimed that he did timely file such a request on January 27, 1998 and did not know why this pleading was not included in the clerk's record. Upon our request, the trial court clerk filed a supplemental clerk's record indicating that Morales had filed a "Request for Notice of Extraneous Matters," but that this pleading was lost. We abated the matter to the trial court for its determination of what constituted an accurate copy of the missing pleading. See Tex. R. App. P. 34.5(e). At the trial court, the parties agreed to stipulate that Exhibit A, entitled "Request for Notice of Extraneous Matters," is a true and correct copy of the request filed by Morales's attorney in the trial court. The trial court entered findings of fact, determining that Exhibit A to the parties' "Agreed Motion" constituted an accurate copy.

2. Texas Rule of Evidence 404(b) provides that evidence of other crimes, wrongs or acts may be admissible for other purposes "provided that upon timely request by the accused, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction." Tex. R. Evid. 404(b). Section 3(g) of article 37.07 of the Texas Code of Criminal Procedures requires a prosecutor, upon a defendant's timely request, to give notice to defendant of her intent to introduce extraneous offenses. Tex. Code Crim. Proc. Ann. art. 37.07, 3(g) (Vernon Supp. 2003).

3. Morales also argues that his second and third issues should be sustained because of the State's failure to give him notice of its intention to introduce evidence of extraneous offenses. For the same reasons discussed above, this argument fails with respect to Morales's second and third issues.