Juan Antonio Garcia v. The State of Texas--Appeal from 144th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00688-CR

Juan Antonio GARCIA,

Appellant

v.

The STATE of Texas,

Appellee

From the 144th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CR-5137

Honorable Mark Luitjen, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 13, 2005

AFFIRMED

Juan Antonio Garcia appeals the judgment convicting him of aggravated assault of a child and indecency with a child by contact and sentencing him to consecutive thirty-five and twenty year terms of imprisonment. On appeal, Garcia complains the trial court erred in (1) failing to follow the law of the case ; (2) demonstrating impermissible bias against him during comments to the venire and rulings throughout trial; (3) admitting evidence in violation of Texas Rules of Evidence 403 and 404(b); and (4) admitting evidence over hearsay objections in violation of the Confrontation Clause. We affirm the judgment of the trial court.

Law of the Case Doctrine

Garcia complains the trial court erred in failing to follow the law of the case as set out during voir dire, thereby denying Garcia a fair trial. While counsel for Garcia was conducting voir dire, a venire person made the following inquiry:

Venire Person: Since we re dealing with the defendant who s been alleged under two counts, let s say he s found guilty under two counts, are the terms of the sentence, do they run concurrently or separate?

Counsel for Garcia: Your Honor?

Trial Court: Concurrently.

Counsel for Garcia: Concurrently.

Venire Person: Okay. Thank you.

Garcia did not object to the trial court s answer nor was the subject brought up again until the conclusion of trial. After the jury returned its verdict on sentencing, the State requested the trial court exercise its discretion and order the sentences run consecutively. Garcia argued that the facts of the case did not warrant consecutive sentences and that the jury s intent was for concurrent sentences. The trial court granted the State s request and entered an order for consecutive, or stacked, sentences.

Garcia made no objection in the lower court that the trial court s stacking of sentences violated the law of the case doctrine. Therefore, the issue of law of the case has not been preserved for review. See Tex. R. App. P. 33.1(a)(1)(A); see also Norris v. State, 902 S.W.2d 428, 446 (Tex. Crim. App.). However, even had Garcia made a timely objection, the argument that the trial court violated the law of the case is without merit.

The law of the case doctrine provides that once a question of law in a particular case has been finally resolved, that question will not be reconsidered in subsequent proceedings of the same case. Ware v. State, 736 S.W.2d 700, 701 (Tex. Crim. App. 1987); Ex Parte Calvin, 689 S.W.2d 460, 462 (Tex. Crim. App. 1985). More specifically, the resolution of a question in a first appeal governs the disposition of the same question in subsequent proceedings. See Satterwhite v. State, 858 S.W.2d 412, 430 (Tex. Crim. App. 1993). There has been no previous appeal in this case deciding the question of whether Garcia s sentences should run concurrently or consecutively. Therefore, the law of the case doctrine is inapplicable here. Garcia s first issue on appeal is overruled.

Impermissible Bias

Garcia contends that on numerous occasions, the trial court s comments and treatment of counsel for Garcia demonstrated disdain and impermissible bias which denied Garcia a fair trial. During trial, Garcia objected that the trial court s comments were impermissible only once, but he did not obtain a ruling on his objection. In the absence of a ruling on an objection, the issue is not preserved for review. See Tex. R. App. P. 33.1(a)(1) (the complaining party on appeal has the burden of preserving its claim with a specific and timely objection and obtain a ruling on that objection). Garcia urges that the trial court s behavior and comments negatively affected the presumption of innocence and rose to the level of fundamental error, which did not require objection at trial. Blue v. State, 41 S.W.3d 129, 131 (Tex. Crim. App. 2000) (plurality opinion) (stating that the trial court s comments tainted the defendant s presumption of innocence and were fundamental error of constitutional proportions, which did not require objection at trial). We disagree.

Garcia first argues that the trial court erred when it stated, [o]nce again, human nature kicks in and we think to ourselves, what does he got to hide? He must be hiding something because, after all, that stuff they put on, she should have gotten up there and told us he didn t do it. Garcia maintains that this was an impermissible comment by the trial court on his right to remain silent. In its very next statement, however, the trial court admonished the jury panel, it cannot be used by you in determining whether or not the State has proven its case. The trial court went to great lengths to explain to the jury that Garcia was not required to testify, and that should Garcia choose not to testify, the jury could not hold that against him.

Garcia next complains that the trial court demonstrated bias when it impermissibly shifted the burden of proof to the defense when the trial court told the jury, [n]ow, remember, of course, the defendant does not have a burden, but, nonetheless, if you hear that from the defendant and they say, why didn t the State call so-and-so, remember if it was something they really wanted you to hear, they could have called him as well. Garcia objected, but did not obtain a ruling. The trial court explained, remember that the defense does not have any burden with respect to everything, except certain defenses. Immediately before the complained of statement, in explaining the right to compulsory process, the trial court told the jury, if one side says the other one should have called so-and-so in, then that s not appropriate because either side could have called that person in.

Garcia also complains that the trial court demonstrated bias during voir dire when it allowed the State to complete a hypothetical before ruling that the State had merely posed a rhetorical question. Garcia objected and requested a mistrial which the trial court denied. When the State continued its line of discussion with the venire, Garcia objected again, and the trial court ordered both attorneys to the bench. Outside the hearing of the venire panel, the trial court asked the court reporter to be certain the request for mistrial and its subsequent denial had been included in the record.

Garcia also argues that the trial court demonstrated bias when it instructed defense counsel, Don t bother me with stuff that you don t know yet. The complained of statement occurred when Garcia objected to possible testimony by Dr. Kellog who was expected to testify whether Garcia had been tested for the herpes virus. Notably, the statement occurred while defense counsel was at the bench, and outside the hearing of the jury. Later, Garcia objected in the presence of the jury on hearsay grounds that Dr. Kellog should not answer the question whether or not the entry reflects a reporting of what s called genital herpes. Garcia s objection was sustained. Garcia complains, on appeal, that the trial court made sure the actual question . . . was asked in front of the jury before [the trial court] sustained the hearsay objection.

Finally, Garcia argues that the trial court was disrespectful of defense counsel when it instructed defense counsel to sit down and would not allow defense counsel to approach Dr. Kellogg during cross-examination and would not allow defense counsel to approach the bench during the re-direct examination of Dr. Kellogg. Additionally, Garcia argues that the trial court made inappropriate remarks when, during the continued re-direct examination of Dr. Kellogg, it admonished defense counsel to stand and make clear objections when he wanted to make an objection and warned defense counsel to not instruct the jury to do anything.

The facts of Blue, in which fundamental error was found, are distinguishable from the case at hand. In Blue, the trial court made extensive remarks clearly indicating that it had pre-judged Blue s guilt. Blue, 41 S.W.3d at 134 (Mansfield, J., concurring). In the instant case, the trial court s admonishments to the jury panel properly set forth Garcia s presumption of innocence, the State s burden of proof and Garcia s constitutional right to not take the witness stand. When viewed in context, the trial court s comments do not reasonably suggest or convey the trial court had pre-judged either Garcia s guilt or innocence and, therefore, do not rise to the level of fundamental error of constitutional dimension.

Additionally, a trial court has broad inherent authority to govern the decorum of its courtroom, providing that the government of the courtroom is consistent with statutory and constitutional provisions. See Weige v. State, 81 Tex. Crim. 476, 196 S.W.2d 524, 526 (1917). There are no statutory or constitutional provisions requiring that the trial court allow defense counsel to approach either the bench or a witness. The trial court was within its authority when it required that defense counsel stand and make clear objections and when it warned defense counsel to not directly instruct the jury. The actions about which Garcia complains fall within the trial court s authority to govern the decorum of its courtroom, and neither suggest nor convey an opinion on Garcia s guilt or innocence. Accordingly, Garcia s second issue is overruled.

Admission of Evidence

We review a trial court s admission or exclusion of evidence for an abuse of discretion. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). A trial court does not abuse its discretion, and we will not reverse a trial court s ruling, unless the ruling falls outside the zone of reasonable disagreement. Id. A trial court abuses its discretion when it acts without reference to any guiding rules and principles or acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990).

Rules 403 & 404(b)

On December 29, 2003, the State filed notice of its intent to introduce evidence pursuant to Texas Rules of Evidence 404(b) and 606(f) and Texas Code of Criminal Procedure Articles 37.07 and 38.37. In that notice, the State indicated it intended to introduce evidence that Garcia digitally penetrated the female sexual organ of the complainant on four occasions and touched the breast of the complainant the same number of times. Two days before trial, the State provided an amended notice of intent to produce evidence of extraneous conduct which increased the number of digital penetrations to ten and characterized the number of times Garcia touched the complainant s breast as multiple. The trial court admitted the evidence over Garcia s objections.

At a pre-trial hearing, the trial court also addressed the issue of whether the State should be prohibited from talking about the fact that this child has herpes. The trial court determined that the fact the complainant was infected with herpes was admissible, but admonished the State that it was required to prove Garcia was also infected. Additionally, the trial court warned the State to stay away from any expert testimony that you might present that that can be done through digital penetration, because there has not been a Rule 700 voir dire in that regard.

During the direct examination of the complainant, the State asked to approach the bench and inquired whether it would be able to get to the content of what was on the TV during some of those times the TV was on while these acts were taking place. The testimony the State expected to elicit from the complainant was that pornography was on the television during some of the times the acts took place. Garcia objected that allowing the complainant to so testify would amount to the admission of an extraneous instance of uncharged misconduct. The trial court allowed the State to introduce the evidence.

On appeal, Garcia argues that the additional instances of digital penetration and touching of the complainant s breast, as well as the fact that the complainant was infected with herpes and the uncharged misconduct of Garcia showing pornography to the complainant were inadmissible because (1) the State failed to give reasonable notice of its intent to introduce the events; and (2) the probative value of the admission of the events was outweighed by their prejudicial effect.

Rule 404(b): Reasonable Notice

Rule 404(b) requires that upon timely request, the State must provide reasonable notice of its intent to offer evidence of acts of extraneous misconduct on the part of the accused. See Tex. R. Evid. 404(b). Courts vary in their interpretation of what constitutes reasonable notice. See, e.g., Neuman v. State, 951 S.W.2d 538, 539-40 (Tex. App. Austin, no pet.) (one day s notice before testimony to be given was insufficient notice); Hernandez v. State, 914 S.W.2d 226, 234 (Tex. App. Waco 1996, no pet.) (notice given three days before trial when defendant requested notice ten months before trial was not reasonable notice); Self v. State, 860 S.W.2d, 264 (Tex. App. Fort Worth 1993, pet. ref d) (notice given eleven and five days before trial was reasonable when defendant requested notice fourteen days before trial). The purpose of the notice provision is to prevent the defendant from being surprised at trial by testimony concerning offenses for which he is not charged and to aid him in preparing his defense. Self, 860 S.W.2d at 264.

Complainant Infected with Herpes

On appeal, Garcia complains that the trial court allowed the State to present evidence of uncharged extraneous offense to the jury when it allowed the State to tell the jury during opening argument that the complainant had been diagnosed with herpes. At trial, Garcia did not object to the State s statement during opening argument, nor did Garcia object to the testimony of the complainant that she had been diagnosed with herpes. Garcia also did not object to the testimony of Dr. Kellog that the complainant had been diagnosed with herpes. The fact that the complainant contracted herpes is not an act on Garcia s part; therefore, the argument that it is subject to the reasonable notice requirement of Rule 404(b) is without merit.

Garcia further complains that he did not receive notice of the State s intent to introduce evidence that Garcia infected the complainant with herpes. During its opening argument, the State told the jury that the complainant would testify that Garcia would masturbate and then touch the complainant s sexual organ. The significance of that, the State argued, was that later, the complainant developed blisters which led to a diagnosis of herpes. During opening argument, the State neither mentioned that Garcia was also infected with herpes nor told the jury that it would be proven that Garcia infected the complainant with herpes.

During the direct examination of Dr. Kellog, the State questioned

[I]f you had a situation where a person had genital herpes and was, in fact, touching themselves on the penis, would there be any way for that person to transmit herpes to an 11-year-old girl as a result of penetrating the female sexual organ ... immediately after masturbating himself with his hand?

Garcia s sole objection was that Dr. Kellog s response would call for speculation which the trial court overruled. When the State later inquired of Dr. Kellog whether, in her opinion, the complainant could have been infected with herpes in the manner described in the hypothetical, Garcia did not object. Because Garcia failed to object that the State was attempting to introduce evidence of extraneous misconduct, the issue was not preserved for appeal.

Increased Instances of Touching

An extraneous offense is defined as any act of misconduct, whether resulting in prosecution or not, that is not shown in the charging papers. Rankin v. State, 953 S.W.2d 740, 741 (Tex. Crim. App.1996); Brown v. State, 6 S.W.3d 571, 575 n. 2 (Tex. App. Tyler 1999, pet. ref d); accord Rodriguez v. State, 104 S.W.3d 87, 91 (Tex. Crim. App.2003). On or about language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period. Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App.1997).

In this case, the charging papers alleged Garcia cause[d] the penetration of the female sexual organ of [the complainant], a child, by placing [his] finger in the female sexual organ of [the complainant] and engaged in sexual contact with the complainant by touching the complainant s breast. The time period alleged in the indictment was on or about January 5, 2002 for the charge of digital penetration and January 1, 2002 for the charge of touching the complainant s breast.

Garcia complains that the State s original notice to introduce evidence and the amended notice vary in the number of alleged events and time period. The number of digital penetrations change from approximately four to approximately over ten, and the number of times Garcia was alleged to have touched the complainant s breast changed from four to multiple. The time period expanded from the last quarter of 2001 through the first quarter of 2002 in the original notice to from the summer of 2001 through the first quarter of 2002 in the amended notice.

The complainant s testimony constituted proof of the allegations in the charging instrument. Her testimony referred to the same acts Garcia was alleged to have committed against her within the time frame of the indictment. As such, the complainant s testimony was not evidence of extraneous misconduct on the part of Garcia falling within the requirements of Rule 404(b).

Showing Pornography

Garcia complains that testimony by the complainant that on some occasions when Garcia was touching her, pornography was playing on the television constitutes evidence of an extraneous offense for which the State failed to give reasonable notice. Garcia made a timely objection to the testimony at trial, which was overruled.

Presuming it was erroneous for the trial court to have admitted evidence that pornography was playing on the television when Garcia was touching the complainant, that error was harmless. The evidence was presented in just a few short sentences of testimony and was mentioned by the State in its closing argument only once. Upon reviewing the entire record, we are confident that any error the trial court may have committed in admitting this evidence did not affect Garcia s substantial rights and did not play a part in his convictions. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (disregarding the erroneous admission of evidence if that evidence did not have a substantial or injurious influence on the jury s decision); see also Lemmons v. State, 75 S.W.3d 513, 524-25 (Tex. App. San Antonio 2002, pet. ref d) (stating that [a] criminal conviction should not be overturned for non-constitutional error if the appellate court, after examining the record as a whole, has a fair assurance that the error did not influence the jury, or had but a slight effect ).

Rule 403

Rule 403 provides that otherwise relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403. Evidence which is otherwise admissible may be excluded under Rule 403 if such an objection is made. Courts consider several factors when determining whether the prejudicial effect of the evidence substantially outweighs its probative value, including: (1) the probative value of the evidence; (2) the potential to impress the jury in an irrational and indelible fashion; (3) the time necessary to bring forth the testimony; and (4) the proponent s need for the testimony. Montgomery, 810 S.W.2d 389-90.

Complainant Infected with Herpes

Garcia s argument on appeal appears to be that it was error for the trial court to allow the State to tell the jury during opening argument that the complainant had been infected with herpes, with the implication that the complainant had been infected by Garcia. Garcia also complains that the probative value of the complainant s testimony that she was infected with herpes was outweighed by its prejudicial effect and only impressed upon the jury the notion that Garcia acted in conformity with his character.

Garcia, however, did not raise a Rule 403 objection to testimony that the complainant was infected with herpes. Therefore, the error is not preserved for review. See Tex. R. App. P. 33.1(a)(1)(A).

Increased Instances of Touching

Garcia complains on appeal that the prejudicial impact of allowing testimony regarding an increased number of incidents substantially outweighs the probative value of such testimony and that the trial court failed to conduct a proper balancing test. At trial, Garcia objected that allowing such testimony would result in presentation of cumulative evidence and would be outside the scope of the indictment.

The complainant s testimony comprises approximately seventy-seven pages of the record. In a few lines, the complainant testified as to the number of times Garcia penetrated her with his finger and touched her breast. This testimony referred to the same acts and the same time frame alleged in the charging instrument. As such, the State s need for the testimony was great. While the nature of the complainant s testimony could have potential to impress the jury in an irrational and indelible fashion, other factors weigh in favor of allowing the testimony. Additionally, a review of the record reveals that the trial court stated that it did conduct a balancing test and indicated that it found the probative value outweighed the prejudicial impact of the evidence. Therefore, we cannot say that the trial court abused its discretion in allowing the complainant to testify as to the increased instances of touching.

Showing Pornography

In less than 12 lines out of 77 pages of testimony, the State elicited from the complainant that on some occasions when Garcia was touching the complainant, pornography was playing on the television, a fact the State mentioned once during closing argument. During trial, Garcia objected that allowing the complainant to testify as to pornography on the television would amount to allowing the admission of an instance of uncharged misconduct. Garcia did not raise an objection based on Rule 403 at trial. Therefore, the issue was not preserved for appeal. See Tex. R. App. P. 33.1(a)(1)(A).

Confrontation Clause

At trial, the State called Dr. Kellog to testify regarding a sexual assault examination conducted on the complainant. Dr. Kellog testified that the complainant was infected with the virus causing genital herpes. During the direct examination of Dr. Kellog, the State questioned Dr. Kellog concerning medical records belonging to a Juan Garcia. When the State asked Dr. Kellog to explain to the jury the purpose of obtaining information relating to past history in medical records, Garcia objected based on hearsay, specifying that the records referred to by Dr. Kellog had not been admitted as medical records. The trial court overruled the objection, explaining that the question asked by the State did not refer to any specific items within the records. The State went on to ask Dr. Kellog whether the records contained an entry in the personal history section that reflected a reporting of genital herpes. In the midst of this question, Garcia made a hearsay objection to which the trial court responded, [l]et him finish his question. Once the State completed the question, Garcia again made a hearsay objection, arguing that the document had not been properly admitted as a medical document. The trial court called both attorneys to the bench and, outside the hearing of the jury, admonished, [h]ow many Juan Garcias do you think have been booked at the Bexar County Jail? We have no idea if those records pertain to this guy. The trial court sustained Garcia s objection, and Dr. Kellog did not answer the question. Garcia now complains that this episode resulted in the trial court violating the confrontation clause by admitting evidence that he was infected with the herpes virus.

Garcia s objection at trial was based on the hearsay argument that the documents had not been properly admitted as medical records. Garcia s objection did not invoke the confrontation clause. Therefore, a claim based on the confrontation clause was not preserved for review. See Tex. R. App. P. 33.1(a)(1)(A); see also Paredes v. State, 144 S.W.3d 530, 535 (Tex. Crim. App. 2004). Further, the record shows that the trial court sustained Garcia s hearsay objection. Error cannot be based on evidence that was not admitted over objection at the time of the objection. See Hinojosa v. State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999); see also Smith v. State, 547 S.W.2d 6, 12 (Tex. Crim. App. 1977). Finally, the State s witness, Maria Garcia, testified that Garcia admitted to medical personnel at the Bexar County Jail that he was infected with herpes. If there had been any error arising from the complained of direct examination of Dr. Kellog, the fact that the jury was informed of Garcia s medical history through another source without objection renders that error harmless. See Ramon v. State, 159 S.W.3d 927, 932 (Tex. Crim. App. 2004); Alvarez v. State, 511 S.W.2d 493, 498 (Tex. Crim. App. 1974). Therefore, we cannot say the trial court acted outside the zone of reasonable disagreement or abused its discretion. Garcia s fifth issue is overruled.

Conclusion

We affirm the judgment of the trial court.

Alma L. L pez, Chief Justice

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