Jesse Salazar AKA Jessie Salazar v. State ( 2016 )


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  •                          NUMBER 13-15-00583-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    JESSE SALAZAR AKA JESSIE SALAZAR,                                       Appellant,
    v.
    THE STATE OF TEXAS,                                                     Appellee.
    On appeal from the 117th District Court
    of Nueces County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Benavides
    Memorandum Opinion by Justice Rodriguez
    Appellant Jesse Salazar, a.k.a. Jessie Salazar, was charged with assault of his
    then-girlfriend Maria Carrejo.   At trial, the State introduced evidence that Salazar
    impeded Carrejo’s normal breathing by choking her and that he had been previously
    convicted of assault of another girlfriend.            Salazar pleaded true to enhancement
    allegations that he had two prior felony convictions. After a bench trial, the trial court
    found Salazar guilty, convicted him of a second-degree felony, and assessed punishment
    at fifty years’ confinement as a habitual felony offender. See TEX. PENAL CODE §§ 12.42,
    22.01(a)(1), (b-1) (West, Westlaw through 2015 R.S.).
    Salazar raises two issues on appeal. He first contends that he was “not afforded
    Due Process under the Morton Act because the State withheld discovery that had been
    timely requested”—specifically, that he was denied access to recordings of inculpatory
    phone calls between himself and Carrejo. Salazar next contends that he was denied his
    right to a fair trial before an impartial and unbiased judge. We affirm.
    I.      BACKGROUND
    At trial, the State sought to introduce clips from phone conversations between
    Salazar and Carrejo, which were recorded while Salazar was incarcerated awaiting trial.
    The State reported that it was unable to locate Carrejo or arrange for her to appear at
    trial, and Salazar filed a motion objecting to the call recordings on the basis of the
    Confrontation Clause. The State believed that it could nonetheless introduce the calls
    under the “forfeiture by wrongdoing” exception to the Confrontation Clause; according to
    the State, the recordings featured Salazar threatening Carrejo, telling her that if he was
    convicted, he would “find” her.1 See, e.g., Giles v. California, 
    554 U.S. 353
    , 360 (2008).
    Counsel for Salazar denied that he was in contact with Carrejo or knew where she was.
    Based upon our review of the record, the trial court listened to this recording, and the court’s
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    comments during the hearing show that it clearly found the message to have a threatening quality.
    2
    The trial court eventually denied Salazar’s motion concerning the Confrontation Clause
    and allowed the State to rely on recordings of the phone conversations.
    However, later that same day, Carrejo appeared at trial and testified.         She
    explained that counsel for Salazar had called her that afternoon and said “he needed me
    in the courtroom.” She testified that Salazar’s daughter drove her to the courthouse.
    Salazar was then able to confront Carrejo and examine her extensively, and
    Carrejo in fact gave testimony that was highly favorable to Salazar. She testified that
    anything she allegedly told officers on the evening in question was not true, that she was
    drunk that evening, and that she fabricated the incident because she was angry at Salazar
    and “wanted to make his life hell.” According to Carrejo, Salazar’s ex-wife had been
    causing problems for Carrejo and had regularly visited Salazar in jail, upsetting Carrejo
    and inflaming her relationship with Salazar. As to Salazar’s comment during a call that
    if anything happened to him at trial, he would come find her, she explained that this was
    not a threat; it meant Salazar would always seek her out, even if convicted, because she
    and Salazar loved one another. When the State offered another jail phone call in which
    Carrejo told Salazar “you shouldn’t have choked me in front of everyone,” she testified
    that this too was a lie based on anger.
    Furthermore, Carrejo disputed the testimony of investigating officers. The officers
    testified that they had responded to multiple calls from third parties regarding a man
    assaulting a woman inside a nightclub and, later, a man chasing a woman near a
    convenience store. The investigating officers variously reported that they had observed
    Salazar chasing Carrejo, had found Carrejo “visibly shaken” and crying, had observed
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    red marks on Carrejo’s neck, arms, hands, and chest, and had seen fresh blood on her
    mouth. Officers took photographs of the marks, which were offered at trial. According
    to the officers, Carrejo was difficult to understand through her crying, but related that she
    had been choked by Carrejo and was in pain. The officer concluded, based on their
    experience investigating many confirmed cases of family violence, that these marks were
    most consistent with assault. By contrast, at trial, Carrejo testified that she had received
    these marks and injuries from a sexual encounter with an ex-girlfriend on the same night,
    and the reason she had been running barefoot near a convenience store at 2:00 AM was
    to find a payphone and to use the restroom at the store.
    II.    ALLEGED VIOLATION OF MORTON ACT AND DUE PROCESS
    By his first issue on appeal, Salazar abandons his Confrontation Clause
    arguments. Instead, Salazar complains that the State wrongfully failed to provide him
    with the jail call recordings despite his timely request, and the State thereby violated the
    Morton Act and, by extension, the Due Process Clause. See TEX. CRIM. PROC. CODE
    ANN. art. 39.14 (West, Westlaw through 2015 R.S.); see also Brady v. Maryland, 
    373 U.S. 83
    , 87 (1963); Ex Parte Miles, 
    359 S.W.3d 647
    , 665 (Tex. Crim. App. 2012) (orig.
    proceeding). However, Salazar did not raise this argument before the trial court, and
    prior to trial, counsel for Salazar acknowledged that he had previously heard the call
    recordings and was familiar with their content.        Salazar has waived this issue for
    purposes of his appeal. See TEX. R. APP. P. 47.1; Pena v. State, 
    285 S.W.3d 459
    , 464
    (Tex. Crim. App. 2009) (“Whether a party’s particular complaint is preserved depends on
    whether the complaint on appeal comports with the complaint made at trial.”); see also
    
    4 Yates Sel. Cas. v
    . State, 
    941 S.W.2d 357
    , 364 (Tex. App.—Waco 1997, pet. ref’d) (discussing
    waiver of Brady violations for untimely disclosure of evidence). We overrule Salazar’s
    first issue.
    III.   ALLEGED PARTIALITY OF TRIAL COURT
    By his second issue, Salazar contends that he was deprived of his Due Process
    rights to a fair trial before an impartial judge, citing Brown v. Vance, 
    637 F.2d 272
    , 281
    (5th Cir. 1981) and Bray v. Gramely, 
    520 U.S. 899
    , 904–05 (1927). As we understand
    Salazar’s argument, the trial court’s bias is shown by two aspects of this case: that the
    trial court did not believe Carrejo’s recantation and her testimony that the assault never
    occurred, and that the court assessed a high sentence—fifty years—as punishment.
    That is, Salazar does not appear to challenge the evidence as insufficient or challenge
    the sentence as excessive, per se; instead, he challenges the trial court’s neutrality as it
    is reflected by these problems.
    A.     Applicable Law
    This Court has held, in a different context, that a defendant has an absolute right
    to an impartial judge. Hernandez v. State, 
    268 S.W.3d 176
    , 184 (Tex. App.—Corpus
    Christi 2008, no pet.); see Fears v. State, 
    479 S.W.3d 315
    , 339 (Tex. App.—Corpus
    Christi 2015, pet. ref’d). Bias by an adjudicator is not lightly established. Celis v. State,
    
    354 S.W.3d 7
    , 24 (Tex. App.—Corpus Christi 2011), aff’d, 
    416 S.W.3d 419
    (Tex. Crim.
    App. 2013). Absent a clear showing of bias, we presume that the trial court is impartial.
    Tapia v. State, 
    462 S.W.3d 29
    , 44 (Tex. Crim. App. 2015); Brumit v. State, 
    206 S.W.3d 639
    , 645 (Tex. Crim. App. 2006).
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    It is well established that in a sufficiency review, the factfinder is the exclusive
    judge of the weight and credibility of the evidence. Wise v. State, 
    364 S.W.3d 900
    , 903
    (Tex. Crim. App. 2012). Unless the available record clearly reveals a different result is
    appropriate, an appellate court must defer to the factfinder’s determination concerning
    what weight to give contradictory testimonial evidence because resolution often turns on
    an evaluation of credibility and demeanor. Johnson v. State, 
    23 S.W.3d 1
    , 8 (Tex. Crim.
    App. 2000) (en banc); see Watson v. State, 
    204 S.W.3d 404
    , 443 (Tex. Crim. App. 2006).
    A factfinder is duly entitled to disbelieve a witness’s recantation of a prior statement.
    Saldana v. State, 
    287 S.W.3d 43
    , 60 (Tex. App.—Corpus Christi 2008, pet. ref’d).
    As to Salazar’s allegations concerning excessive sentencing, a punishment which
    falls within the legislatively prescribed range and that is based upon the trial court’s
    informed normative judgment is unassailable on appeal, subject to a limited and rare
    exception for Eighth Amendment gross-disproportionality review. Barrow v. State, 
    207 S.W.3d 377
    , 381 (Tex. Crim. App. 2006). The Texas Court of Criminal Appeals “has
    traditionally held that punishment assessed within the statutory limits, including
    punishment enhanced pursuant to a habitual-offender statute, is not excessive, cruel, or
    unusual.” State v. Simpson, 
    488 S.W.3d 318
    , 323 (Tex. Crim. App. 2016). Under penal
    code section 22.01(a)(1), a person commits assault if the person intentionally causes
    bodily injury to another. TEX. PEN. CODE ANN. § 22.01(a)(1). Such an assault is a felony
    of the second degree if:
    (1) the offense is committed against a person whose relationship to or
    association with the defendant is described by Section 71.0021(b),
    71.003, or 71.005, Family Code;
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    (2) it is shown on the trial of the offense that the defendant has been
    previously convicted of an offense under this chapter, Chapter 19, or
    Section 20.03, 20.04, or 21.11 against a person whose relationship to
    or association with the defendant is described by Section 71.0021(b),
    71.003, or 71.005, Family Code; and
    (3) the offense is committed by intentionally, knowingly, or recklessly
    impeding the normal breathing or circulation of the blood of the person
    by applying pressure to the person’s throat or neck or by blocking the
    person’s nose or mouth.
    
    Id. § 22.01(b-1).
    The habitual felony offender statute provides as follows:
    Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial
    of a felony offense other than a state jail felony punishable under Section
    12.35(a) that the defendant has previously been finally convicted of two
    felony offenses, and the second previous felony conviction is for an offense
    that occurred subsequent to the first previous conviction having become
    final, on conviction the defendant shall be punished by imprisonment in the
    Texas Department of Criminal Justice for life, or for any term of not more
    than 99 years or less than 25 years.
    
    Id. § 12.42.
    B.     Analysis
    Here, Salazar argues that the trial court showed its bias by not giving conclusive
    weight to Carrejo’s recantation. However, the trial court had heard a recorded call which
    could have reasonably been interpreted as a threat of retribution to Carrejo. The court
    also received an authenticated copy of Salazar’s previous conviction for family violence
    assault, as well as testimony that Salazar was a professed member of the Texas
    Syndicate, a Texas prison gang. The trial court had been led to believe that neither side
    knew Carrejo’s whereabouts, only to have counsel for Salazar produce Carrejo after his
    Confrontation Clause motion was denied. Finally, Carrejo’s testimony contradicted a
    great deal of evidence which was collected on the night in question. As the State points
    7
    out, unfortunately, recantation is not an uncommon phenomenon in this type of case.
    See, e.g., O’Laughlin v. O’Brien, 
    577 F.3d 1
    , 4 (1st Cir. 2009) (quoting T. Linger,
    Prosecuting Batterers After Crawford, 91 VA. L. REV. 747, 768 (2005)) (“Recent evidence
    suggests that 80 to 85 percent of battered women will recant at some point.”). The trial
    court seems to have drawn perfectly rational inferences and credibility determinations
    from this conflicting evidence, see 
    Johnson, 23 S.W.3d at 8
    , and no bias is evident in the
    trial court’s decision to discount Carrejo’s recantation and related testimony.       See
    
    Saldana, 287 S.W.3d at 60
    ; see also 
    Celis, 354 S.W.3d at 24
    .
    As to Salazar’s attempt to show bias by way of excessive sentencing, the trial court
    assessed a fifty-year sentence that fell squarely within the legislatively prescribed range
    of possible sentences: life, or “any term of not more than 99 years or less than 25 years.”
    See TEX. PEN. CODE ANN. §§ 12.42, 22.01(a)(1), (b-1); 
    Barrow, 207 S.W.3d at 381
    .
    Indeed, Salazar’s sentence was below the median of these possible sentences. Salazar
    does not challenge this sentence as grossly disproportionate, and he does not bring any
    other facts to our attention which would potentially suggest that the sentence was an
    indication of bias. See 
    Simpson, 488 S.W.3d at 323
    .
    In sum, Salazar does not properly challenge the sufficiency of the evidence or the
    inferences that it reasonably supports, and he does not challenge the excessiveness of
    the sentence.    Instead, he questions the trial court’s integrity for drawing these
    inferences in a natural and logical progression towards this sentence. Salazar has made
    no showing of bias, let alone the clear showing required under our constitutional
    jurisprudence. See 
    Tapia, 462 S.W.3d at 44
    . We therefore presume that the trial court
    8
    was impartial. See 
    id. We overrule
    Salazar’s second issue.
    IV.     CONCLUSION
    We affirm the judgment of the trial court.
    NELDA V. RODRIGUEZ
    Justice
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the
    20th day of October, 2016.
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