Manzanarez v. State

Full title: GONZALO MANZANAREZ, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Jan 23, 2009

No. 05-07-01634-CR (Tex. App. Jan. 23, 2009)

Opinion

No. 05-07-01634-CR

Opinion issued January 23, 2009. DO NOT PUBLISH. Tex. R. App. P. 47.

On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F06-73752-I.

Before Chief Justice THOMAS and Justices MORRIS and FRANCIS. Opinion By Justice MORRIS.

OPINION

JOSEPH B. MORRIS, Justice.

A jury convicted Gonzalo Manzanarez of aggravated sexual assault of a child. He now complains on appeal that the evidence against him is factually insufficient. He further complains the trial court erred by improperly admitting evidence, failing to declare a mistrial during jury argument, and overruling his objection to a jury instruction. Concluding appellant's arguments are without merit, we affirm the trial court's judgment.

Factual Background

The complainant in this case was approximately thirteen years old when appellant climbed on top of her and sexually assaulted her. Appellant was a cousin to the girl's mother, and she referred to him fondly as her uncle. He had taken the complainant, her aunt, and her siblings out for pizza. He then spent the night in the complainant's home while her parents were at work. Because she was hot, the complainant left the room where she and her sister shared a bed with her aunt. She went to the living room to sleep on the couch. She did not own pajamas, so she slept in her clothing. While she was lying on the couch, appellant walked out of the bedroom where he was supposed to sleep and into the living room. He lay down on top of the complainant. Then he got up, removed his pants and underwear, and pulled off the complainant's clothes, tearing her skirt. He covered her mouth with his hand so she could not scream and inserted his penis into her vagina. He sexually assaulted her for several minutes, then he wiped off his wet penis with one of his socks and left the room. The next morning, the complainant's aunt, who was responsible for the household laundry, found the complainant's skirt in the laundry pile and threw it away because it was ripped. Appellant asked the aunt for a new pair of socks, claiming he did not have any. Some time after the assault, the complainant's aunt, who was only nineteen years old, revealed to the complainant that she left Mexico because a brother-in-law there had been "bothering" her. When the complainant heard this, she began to cry. She told the aunt what appellant had done to her but implored the aunt not to tell anyone. Eventually, the complainant told her counselor at school about the sexual assault. When appellant was questioned by police about the complainant's allegations, he denied he sexually assaulted the girl. The complainant testified that, on other occasions, appellant had also touched her breasts over her clothing.

Discussion

In his first issue on appeal, appellant contends the evidence against him is factually insufficient to support his conviction. He specifically complains there was no physical corroborating evidence in the case and the complainant was not believable because her parents were talking about divorcing at the time of trial, she had attended summer school before the offense, and her aunt may have unduly influenced her with her own story of sexual molestation. Appellant further contends that the offense could not have occurred as the complainant reported because the complainant said that she had been lying on a couch in the living room, but her aunt said that the complainant sometimes slept on the largest of three "easy chairs" in the room. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex.Crim.App. 2008). We determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705. Here, the child complainant explicitly testified about what appellant had done to her. Her testimony was corroborated by her aunt, who recalled having to give appellant new socks the night after he had taken them out for pizza and recalled finding the complainant's torn skirt in the laundry. The fact that the complainant had attended summer school in the past or that her parents had contemplated divorce after the sexual assault does not make the girl an incredible witness. The jury was entitled to believe the girl, despite the fact that she shared a home with another young woman who may have also been sexually molested. Moreover, the aunt testified that she did not know the difference between an "easy chair" and a sofa. The complainant had her questions translated from English to Spanish and then responded primarily in English, while her aunt testified entirely through an interpreter. The complainant maintained that there were three "couches" in the living room — one with one seat, one with two seats, and one with three seats, where she slept. The aunt testified that there were three "easy chairs" in the room — a large one, a medium one, and an individual one. The aunt testified that the complainant slept on the large easy chair. The complainant's mother, who also testified through an interpreter, testified that the home had sofas in the living room. After viewing all the evidence in a neutral light, we conclude it is factually sufficient to support appellant's conviction for aggravated sexual assault. We resolve his first issue against him. In his second issue, appellant complains the trial court erred in admitting irrelevant victim impact testimony during the guilt-innocence phase of trial. Over appellant's objection, the complainant's mother responded to a prosecutor's question about whether she felt bad because the complainant had outcried to a school counselor before her. She said that she "felt a little responsible because of the trust that [she] had placed on [her] cousin." Regardless of whether the trial court erred in admitting this testimony, we fail to see how its admission harmed appellant. Non-constitutional errors in criminal cases that do not affect substantial rights are to be disregarded. See Tex. R. App. P. 44.2(b). A substantial right is affected if the error has a substantial and injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). The complainant's mother's testimony merely established that she felt bad for trusting appellant. Given the other testimony in the case, the jury would have expected the mother to feel this way, regardless of whether she actually testified about her feelings. The testimony did not pertain to the impact the offense had on the complainant, nor did it constitute additional proof of the offense. Because the testimony did not affect appellant's substantial rights, we resolve appellant's second issue against him. Next, appellant argues that the trial court should have ordered a mistrial on its own motion when the prosecutor's jury argument struck at him over his counsel's shoulders. The prosecutor specifically argued, "The only thing shameful about his trial is the way the defense lawyer has acted when he doesn't follow the rules of the court that every lawyer has to follow. And also of this man here's actions." Before this argument, defense counsel had argued that the State's arguments were "B.S." and "crap" and "just the biggest B.S. I've ever heard." Defense counsel also argued, "This is the worst investigation I have ever seen, heard or experienced. It's shameful. It's downright shameful. . . . It's horrible. It's a shameful investigation." Generally, an appellant may not complain about an improper jury argument unless he objected to the argument at trial. See Threadgill v. State, 146 S.W.3d 654, 670 (Tex.Crim.App. 2004). Although a trial court has the power to order a mistrial on its own motion, it may do so only when there is a manifest necessity for the act. See Torres v. State, 614 S.W.2d 436, 442 (Tex.Crim.App. 1981). The power should be used with the "greatest caution." Id. A trial judge's discretion to declare a mistrial based on manifest necessity is limited to extraordinary and striking circumstances. Hill v. State, 90 S.W.3d 308, 313 (Tex.Crim.App. 2002). We do not believe such circumstances existed in appellant's case. Proper jury argument generally must consist of one of the following: (1) a summation of the evidence presented at trial; (2) a reasonable deduction drawn from that evidence; (3) an answer to opposing counsel's argument; or (4) a plea for law enforcement. To determine if a party's argument falls into one of these categories, we must consider the argument in light of the entire record. Magana v. State, 177 S.W.3d 670, 674 (Tex.App.-Houston [1st Dist.] 2005, no pet.). The State may not use its argument to strike at the defendant over the shoulders of his counsel. Such an argument refers to defense counsel personally or impugns defense counsel's character. See id. at 674-75. The complained-of jury argument in appellant's case was a response to defense counsel's argument disparaging the State's case through crude language inappropriate to a courtroom setting and specifically calling the investigation shameful. If defense counsel invites argument, then it is appropriate for the State to respond. See Swarb v. State, 125 S.W.3d 672, 686 (Tex.App.-Houston [1st Dist.] 2003, pet. dism'd). Any additional reference to appellant's behavior being shameful was a reasonable deduction from the evidence showing how he had sexually assaulted the child complainant. There was no manifest necessity in the case for the trial court to declare a mistrial on its own motion. We resolve appellant's third issue against him. In his fourth and fifth issues, appellant complains about the how the law of deportation was incorporated into his case. He first complains the trial court included an instruction about the possibility of his deportation in the jury charge. The instruction states:

The court has taken judicial notice of the following statutes: 8 USC, Section 1101 (43), the term "aggravated felony" means sexual abuse of a minor; 8 USC, Section 1127, any alien who is convicted of an aggravated felony is deportable; 8 USC, Section 1001, the term "alien" means any person not a citizen or national of the United States.

Appellant contends this instruction "effectively allowed the jury to consider Appellant's national origin and alienage, and strongly suggested Appellant would be deported." In a different case, we might agree with appellant's argument. On the facts of appellant's case, however, we conclude the instruction was appropriate. During the punishment phase of trial, defense witnesses were questioned without objection about appellant's alien status. The witnesses acknowledged that appellant was subject to deportation and was hoping to be deported, should his sentence be probated. Given this testimony, the trial court did not err by including this law applicable to appellant's case in the jury charge. See Tex. Code Crim. Proc. Ann. arts. 36.14, 36.15 (Vernon 2006 2007). Moreover, the jury had already heard testimony regarding appellant's national origin and possible deportation. Accordingly, even if the objected-to instruction were erroneous, appellant cannot show any actual harm from the instruction. See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). We resolve appellant's fourth issue against him. In his related fifth issue, appellant complains the trial court erred in denying his motion for mistrial during the State's jury argument discussing his possible deportation. The prosecutor argued the following at punishment:

. . . [I]f you were to give [appellant] probation, there's nothing that prevents the Federal Government from deporting him to Mexico.

. . .

. . . The truth of the matter is that if he's given probation, in all likelihood, he will be deported to Mexico.

Appellant objected that the first argument constituted a "misstatement of the law" and the second was "just plain false." Appellant's motion for mistrial, based on the fallacy of the second argument, was denied. Appellant now contends he was entitled to a mistrial because the prosecutor's argument urged the jury to consider appellant's national origin and conveyed to the jury the impression that the State had extrajudicial knowledge that appellant would be deported. Under Rule 33.1 of the Texas Rules of Appellate Procedure, as a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely and specific request, objection, or motion. See Griggs v. State, 213 S.W.3d 923, 927 (Tex.Crim.App. 2007). Because appellant did not raise his appellate complaints at trial, he failed to preserve them for our review. See Aragon v. State, 229 S.W.3d 716, 720-21 (Tex.App.-San Antonio 2007, no pet.). We therefore resolve appellant's fifth issue against him. We affirm the trial court's judgment.