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Leos-Jimenez v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 19, 2017
No. 05-16-01440-CR (Tex. App. Jun. 19, 2017)

Opinion

No. 05-16-01440-CR

06-19-2017

JULIO CESAR LEOS-JIMENEZ, Appellant v. THE STATE OF TEXAS, Appellee


On Appeal from the 282nd Judicial District Court Dallas County, Texas
Trial Court Cause No. F-1651917-T

MEMORANDUM OPINION

Before Justices Lang, Myers, and Stoddart
Opinion by Justice Stoddart

A jury convicted Julio Cesar Leos-Jimenez of continuous sexual assault of a child under the age of fourteen and sentenced him to thirty years' confinement. In two issues, appellant argues the trial court erred by admitting an exhibit and by overruling his objection to the State bolstering the complaining witness's testimony. We affirm the trial court's judgment.

Appellant's issues relate to the trial court's admission of evidence, which we review under an abuse of discretion standard. See Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011). The improper admission of evidence is non-constitutional error that we disregard unless the error affected an appellant's substantial rights. Garcia v. State, 126 S.W.3d 921, 927 (Tex. Crim. App. 2004) (citing TEX. R. APP. P. 44.2(b)). Under rule 44.2, an appellate court may not reverse for non-constitutional error if the court, after examining the record as a whole, has fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. See id.

In his first issue, appellant argues the trial court erred by admitting Exhibit 12 into evidence. Exhibit 12 is a CD containing an audio recording of a telephone call between appellant and his wife that occurred after appellant was arrested. The conversation is in Spanish and it was not translated into English. Although appellant's wife testified at trial about what was said during the telephone conversation, the audio recording was never played for the jury. Even if we assume the trial court erred by admitting the exhibit, appellant does not argue the alleged error harmed him. We agree. Not only was Exhibit 12 not played for the jury, but appellant's wife testified without objection about the conversation, including what appellant said to her. Based on this record, we conclude the admission of Exhibit 12 did not have a substantial and injurious effect or influence in determining appellant's conviction or punishment. See Garcia, 126 S.W.3d at 927; see also Rodriguez v. State, No. 05-10-00142-CR, 2011 WL 1744410, at *4 (Tex. App.—Dallas May 9, 2011, no pet.) (mem. op., not designated for publication) (appellant failed to show harm when audio recording in Spanish played for jury because witness described events in English as State played recording). Any possible error from the trial court's admission of Exhibit 12 is harmless. See TEX. R. APP. P. 44.2(b). We overrule appellant's first issue.

In his second issue, appellant asserts the trial court erred by overruling his objection to the State bolstering the complainant's credibility. The following exchange occurred during the State's examination of the complainant:

Q. Did that woman from CpS ask you if you had ever been abused sexually?
A. Yes.
Q. What did you tell her?
A. No.
Q. Why did you tell her no?
A. 'Cause I was scared.
Q. And you told her no, that wasn't the truth, right?
A. Yes.
Q. And you understand you took an oath today to tell the truth, correct?
A. Yes.
Q. What's your one job when you're testifying in court?
A. Say the truth.
Q. You told the jury the truth so far?
A. Yes.
Counsel for appellant objected on the grounds of "witness bolstering," and the trial court overruled the objection.

Without deciding whether "bolstering" remains a proper objection under our rules, and assuming the trial court abused its discretion by overruling the objection, we cannot agree with appellant that any error would require reversal. The jury is the sole judge of a witness's credibility and makes determinations about the weight to be given to their testimony. See, e.g., Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). The jury in this case was aware of its duty to consider witness credibility as the trial court's charge instructed: "You are the exclusive judges of the facts proved, of the credibility of the witnesses and the weight to be given to their testimony." The jury had this duty regardless of the questioning quoted above.

"Bolstering" is an objection that existed prior to the adoption of the rules of evidence. See Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009). While it was not included in the codification of the evidentiary rules and is "slowly dying as an objection on its face, it has not yet expired." Id. Although the Texas Court of Criminal Appeals acknowledged that "bolstering objections" continue to be used in the trial courts, we only address whether overruling appellant's objection was harmful.

Appellant claims he was harmed because the complainant's credibility was important in the case. If we agree that the complainant's credibility was important and her testimony that she was telling the truth could effectively bolster her own credibility in this manner, we note the above-quoted exchange reflects the oath all witnesses take to tell the truth. Immediately before the complainant testified, the trial court instructed the jury that the witnesses were previously sworn. Thus, the State's questions elicited information that was redundant of the complainant's original act of swearing to tell the truth.

Additionally, the trial included testimony that the complainant had a motive to lie and appellant presented witnesses who called into question her character for truthfulness. In his opening statement, appellant's counsel stated he did not believe the jury should "give much credence to what [the complainant] is saying about these allegations." Likewise, in closing, appellant's counsel discussed the complainant's motivation to fabricate the allegations and questioned her credibility.

In light of the evidence and argument which highlighted the complainant's credibility to the jury, as well as the jury's role in weighing a witness's credibility, we conclude appellant was not harmed by the alleged bolstering and any error by the trial court in overruling the objection was harmless. See Denver v. State, No. 05-14-00817-CR, 2016 WL 661034, at *5 (Tex. App.—Dallas Feb. 18, 2016, pet. ref'd) (mem. op., not designate for publication) (alleged bolstering did not harm appellant). We overrule appellant's second issue.

We affirm the trial court's judgment.

/Craig Stoddart/

CRAIG STODDART

JUSTICE Do Not publish
TEX. R. APP. P. 47.2(b)
161440F.U05

JUDGMENT

On Appeal from the 282nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. F-1651917-T.
Opinion delivered by Justice Stoddart. Justices Lang and Myers participating.

Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 19th day of June, 2017.


Summaries of

Leos-Jimenez v. State

Court of Appeals Fifth District of Texas at Dallas
Jun 19, 2017
No. 05-16-01440-CR (Tex. App. Jun. 19, 2017)
Case details for

Leos-Jimenez v. State

Case Details

Full title:JULIO CESAR LEOS-JIMENEZ, Appellant v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals Fifth District of Texas at Dallas

Date published: Jun 19, 2017

Citations

No. 05-16-01440-CR (Tex. App. Jun. 19, 2017)