Jesse Hinojosa Gonzales v. The State of Texas--Appeal from 175th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-03-00563-CR

Jesse Hinojosa GONZALES,

Appellant

v.

The STATE of Texas,

Appellee

From the 175th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CR-6972-C

Honorable Mary Rom n, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 17, 2005

AFFIRMED

Jesse Hinojosa Gonzales appeals the trial court s judgment convicting him of two counts of bribery and one count of money laundering, sentencing him to twelve years confinement on each count of bribery and ten years confinement on the money laundering count, and fining him $10,000.00 on each count. We affirm the trial court s judgment.

1. In his first and ninth points of error, Gonzales argues the prosecutor violated his Sixth Amendment right to counsel by making improper arguments to the jury. The State, recognizing that we generally do not review for prosecutorial error but for trial court error, responds that Gonzales has failed to show trial court error because he failed to object in, and obtain a ruling from, the trial court. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996) (holding a defendant s failure to object to a jury argument or a defendant s failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal ), cert. denied, 520 U.S. 1173 (1997). In response, Gonzales argues that Cockrell does not apply because his points of error one and nine are premised on the position that a criminal defendant can be stripped of his counsel, not only through the outright denial of the physical presence of a lawyer in the courtroom, but [also] through the egregious attacks of a prosecutor during closing argument, as occurred in [] Gonzales [s] case both during the guilt-innocence and punishment stages of his trial. In support of this argument, Gonzales relies principally upon United States v. McDonald, 620 F.2d 559 (5th Cir. 1980), in which McDonald argued that the prosecutor used the fact that his lawyer was present during the search as a basis for an inference of guilt, impermissibly penalizing him for exercising his constitutional right to counsel. Id. at 562. The court held it could notice [the alleged errors] even though they were not brought to the trial court s attention because they affect McDonald s substantial constitutional rights. Id. In support of its holding, the court cites Federal Rule of Criminal Procedure 52(b), which expressly permits consideration of plain error that affects substantial rights even though it was not brought to the court s attention. Fed. R. Crim. P. 52(b). The Texas Court of Criminal Appeals also recognizes that certain errors are fundamental and need not be preserved. See Marin v. State, 851 S.W.2d 275, 280 (Tex. Crim. App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262 (Tex. Crim. App. 1997). However, the court has expressly held that this class of errors does not include improper jury argument, even when it is argued to infringe upon a defendant s exercise of his constitutional right to counsel. See Threadgill v. State, 146 S.W.3d 654, 667 (Tex. Crim. App. 2004) (holding that defendant s failure to object waived complaint that the prosecutor erred by arguing at the guilt or innocence phase in such a way as to strike at appellant over the shoulders of his counsel ). We are bound by Threadgill and therefore hold that, by failing to object, Gonzales waived the complaints encompassed by his first and ninth points of error.

2. In his second and fourth points of error, Gonzales argues the application paragraph on the money laundering count eliminated the presumption of innocence on the bribery count and commented on the weight of the evidence by instructing the jury that Gonzales received money from a bribe. As the State points out, however, Gonzales s argument ignores that the paragraph opens and closes with if :

Now, if you find from the evidence beyond a reasonable doubt that on or about the 5th day of November, A.D., 2001, in Bexar County, Texas, the defendant, Jesse Gonzales, did knowingly acquire or maintain an interest in or possess the proceeds of criminal activity, to-wit, bribery, a felony in the State of Texas, in which Jesse Gonzales received money from a bribe while he was a public servant, namely, an elected Trustee for the Alamo Community College District, and the value of said funds was three thousand dollars ($3,000) or more but less than twenty thousand dollars ($20,000), then you will find the defendant guilty of money laundering as charged in Count III of the indictment.

If you do not so find from the evidence beyond a reasonable doubt or if you have a reasonable doubt thereof, you will find the defendant not guilty in Count III of the indictment.

(Emphasis added). When read in context, the complained-of language obviously did not declare that Gonzales was guilty of bribery but explained to the jury that the State was required to prove the predicate crime of bribery to prove money laundering. We therefore overrule Gonzales s second and fourth points of error.

3. In his third point of error, Gonzales argues the accumulation of error complained of in his first and second points constitutes fundamental error requiring reversal. However, because Gonzales has not supported his contention with any authority, he has presented nothing for review. See Boler v. State, No. 01-04-00234-CR, 2005 WL 825900 at *6 (Tex. App. Houston [1st Dist.] April 7, 2005, no pet. h.) (citing Tex. R. App. P. 38.1(h)). More importantly, because Gonzales s first and second points of error are without merit, they cannot yield an accumulation of error. We therefore overrule Gonzales s third point of error.

4. In his fifth point of error, Gonzales contends the money laundering statute, Tex. Pen. Code Ann. 34.02(a)(1), is facially unconstitutional because it omits [the mens rea requirement] that a person have knowledge that the proceeds in question be of criminal activity, and therefore it encourages arbitrary arrests and convictions of people who engage in otherwise innocent conduct. We disagree. Under section 34.02(a)(1), a person commits the offense of money laundering if the person knowingly acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of criminal activity. Tex. Pen. Code Ann. 34.02(a)(1) (Vernon 2003). Section 34.02(a)(1) thus requires that the person know the proceeds are derived from criminal activity. See Lee v. State, 29 S.W.3d 570, 576 (Tex. App. Dallas 2000, no pet.) (noting that defendant would be guilty of money laundering if jury believed he knew money was dirty money and rational jury could have so found). Accordingly, we overrule Gonzales s fifth point of error.

5. Gonzales voluntarily withdraws his sixth point of error.

6. In his seventh point of error, Gonzales argues his conviction for money laundering must be vacated because it is a lesser included offense of bribery, resulting in multiple punishment, in violation of the double jeopardy clause of the federal constitution. We again disagree. Multiple punishments arising out of the same criminal conduct are constitutionally permissible if each of the crimes requires proof of an additional fact which the other does not. Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); see also Ex parte Goodman, 152 S.W.3d 67, 70 n.5 (Tex. Crim. App. 2004), cert. denied, 125 S. Ct. 2940 (2005). Here, Gonzales was indicted and ultimately convicted of bribery under section 36.02(a)(1), (4) of the Texas Penal Code and money laundering under section 34.02(a)(1). Under section 36.02(a)(1), (4) a person commits bribery if:

he intentionally or knowingly offers, confers, or agrees to confer on another, or solicits, accepts, or agrees to accept from another:

(1) any benefit as consideration for the recipient s decision, opinion, recommendation, vote, or other exercise of discretion as a public servant, party official, or voter;

....

or

(4) any benefit that is a political contribution as defined by Title 15, Election Code, or that is an expenditure made and reported in accordance with Chapter 305, Government Code, if the benefit was offered, conferred, solicited, accepted, or agreed to pursuant to an express agreement to take or withhold a specific exercise of official discretion if such exercise of official discretion would not have been taken or withheld but for the benefit; notwithstanding any rule of evidence or jury instruction allowing factual inferences in the absence of certain evidence, direct evidence of the express agreement shall be required in any prosecution under this subdivision.

Tex. Pen. Code Ann. 36.02(a)(1), (4) (Vernon 2003). Under section 34.02(a)(1), a person commits money laundering if he knowingly acquires or maintains an interest in, receives, conceals, possesses, transfers, or transports the proceeds of criminal activity. Id. 34.02(a)(1).

Bribery and money laundering thus both require the same culpable mental state knowingly and the same culpable act receive[] or accept[]. However, the commonality ends there. Even assuming the greatest possible overlap, it is still clear that each statute requires proof of at least one element the other does not: money laundering, but not bribery, requires the involvement of proceeds of a criminal activity; and bribery, but not money laundering, requires an exercise and perversion of official discretion by the benefit offered or received, the involvement of a public servant, party official, or voter, and a benefit that is a political contribution or expenditure. Because bribery and money laundering each requires proof of a fact that the other does not, multiple punishments arising out of the same criminal conduct are not constitutionally prohibited. Accordingly, we overrule Gonzales s seventh point of error.

6. In his final point of error, Gonzales argues the trial court erred in failing to declare a mistrial after the prosecutor made the following argument:

Now you know the facts, now you know the severity of the actions. You know this wasn t a guy taking one step over the line and making a mistake. You know this isn t a guy who accepted responsibility for his crime, which is extremely important. Who deserves probation? Think before you even consider probation the person has to say, I did it. I m sorry. I won t do it again. And if you believe him, he gets probation.

Although the trial court sustained Gonzales s objection and instructed the jury to disregard the prosecutor s comments, it denied Gonzales s motion for a mistrial. On appeal, Gonzales argues the trial court abused its discretion in denying his motion because the prosecutor s argument was an impermissible comment on his exercise of his right not to testify at the punishment phase. See Wead v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004) (abuse of discretion standard). However, even if denying Gonzales s motion were error, it would not be reversible error unless the trial court s instruction to disregard failed to cure the improper argument s prejudicial effect. See Wilkerson v. State, 881 S.W.2d 321, 327 (Tex. Crim. App.), cert. denied, 513 U.S. 1060 (1994). An instruction fails to cure the improper argument s prejudicial effect only in the most blatant cases. Moore v. State, 999 S.W.2d 385, 405 (Tex. Crim. App. 1999), cert. denied, 530 U.S. 1216 (2000). Although not expressly adopted as exhaustive or definitive, the Texas Court of Criminal Appeals has relied on the following factors to determine whether an instruction to disregard cured the prejudicial effect of the comment: (1) the nature of the error, (2) the persistence of the prosecution in committing it, (3) the flagrancy of the violation, (4) the particular instruction given, (5) the weight of incriminating evidence, and (6) the harm to the accused as measured by the severity of the sentence. Waldo v. State, 746 S.W.2d 750, 754 (Tex. Crim. App. 1988). We shall also rely on these factors. Even if we assume the nature of the error here was a direct comment on Gonzales s failure to testify, the prosecutor made only one such comment; it was neither persistent nor flagrant. Immediately after the comments, the trial court instructed the jury to please disregard those comments. At the punishment phase, the State re-offered the evidence presented at the guilt stage. This evidence included: a landowner s testimony that Gonzales wanted a $7,500 bribe in exchange for Gonzales s support, as a member of the Alamo Community College District Board (the Board ), for the purchase of the landowner s property; an architect s testimony that Gonzales wanted $20,000 from him in exchange for Gonzales s support to approve his hiring for a multi-million dollar renovation project; the former chairman of the Board s testimony that Gonzales was asking the landowner for a bribe and that he provided Gonzales with $5,000 as a down payment on the $20,000 Gonzales wanted from the architect; a newspaper writer s testimony that Gonzales verified to her that he had received a $5,000 bribe; a Texas Ranger s testimony that Gonzales voluntarily provided a written statement admitting he sought a bribe from the landowner and received $5,000 from the former chairman of the Board as a portion of the money the architect owed him for his support; and Gonzales s own testimony claiming that as part of his own undercover sting operation to root out corruption, he solicited money from the landowner and from the architect and accepted the $5,000 money from the former chairman of the board in exchange for his vote on district matters. Rejecting Gonzales s request for community supervision, the jury assessed a twelve-year sentence on each count of bribery, a ten-year sentence on the money laundering count, and three separate $10,000 fines for each count. Although each of the twelve-year sentences is approximately half of the maximum for bribery, the ten-year sentence for money laundering is, given the amount of money laundered, the maximum permitted. Likewise, each of the $10,000 fines is the maximum permitted.

In light of the overwhelming evidence supporting the jury s verdict of guilty, as well as its assessment of punishment in a manner consistent with the evidence, we conclude that the prosecutor s impermissible comment was not so prejudicial that it could not be and was not cured by the trial court s prompt instruction to disregard. We therefore hold the trial court did not abuse its discretion in denying Gonzales s motion for a mistrial. See Moore, 999 S.W.2d at 405-06 (holding harm from comment on defendant s failure to testify cured by instruction to disregard). Accordingly, we overrule Gonzales s final point of error.

The trial court s judgment is affirmed.

Sarah B. Duncan, Justice

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