Johnny Baldera Jr. v. State ( 2018 )

NUMBER 13-17-00338-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHNNY BALDERA JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 24th District Court
of Calhoun County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Longoria, and Hinojosa
Memorandum Opinion by Justice Contreras
Appellant Johnny Baldera Jr. was convicted of indecency with a child by contact,
a second-degree felony. See TEX. PENAL CODE ANN. § 21.11 (West, Westlaw through
2017 1st C.S.). The jury found that Baldera was a habitual felony offender and assessed
punishment at 27 years’ imprisonment. See id. § 12.42(d) (West, Westlaw through 2017
1st C.S.) (enhancing a habitual felony offender’s punishment to “any term of not more
than 99 years or less than 25 years”). On appeal, Baldera contends by one issue that
the trial court erred by failing to instruct the jury on the jailhouse-witness corroboration
rule. See TEX. CODE CRIM. PROC. ANN. art. 38.075 (West, Westlaw through 2017 1st C.S.).
We affirm.
I. BACKGROUND
Appellant was charged by indictment with continuous sexual abuse of a child, a
first-degree felony. See TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 2017 1st
C.S.).
J.V., who was thirteen years of age at the time of trial, testified that appellant lived
with her and her mother in 2014, when she was in the fourth grade. She stated that
appellant touched her private parts and put his finger insider her private parts while her
mother was away at work. She did not tell anyone about the abuse at first because she
was scared of appellant. She told her mother about the abuse several months later, after
the funeral of her uncle, who had always told her to tell the truth.
D.A., an extraneous offense witness who was sixteen years of age at the time of
trial, testified that appellant “took out his private area and made me start feeling on him”
and put his fingers inside her private area when she was around thirteen years of age,
while her mother was away at work.
Kevin Charles Johnson testified that he was an inmate at the Calhoun County Jail
and that he and appellant were in the same pod. Johnson stated that appellant talked to
him about appellant’s case, and that appellant wanted Johnson to testify on his behalf.
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When asked what appellant wanted him to testify to, Johnson replied:
He wanted me to—he asked me if I would testify that in the end of November
that he come and asked me for a job on—if I wanted a job on his tug boat.
This is what was supposed to be said. I was supposed to say no, that I
worked at the Ford dealership, which I did at that time. And then he wanted
me to say that, well, . . . a couple weeks later that I was supposed to go to
his house and knock on the door and his girlfriend open the door and I ask
where YoYo was, that’s his nickname, YoYo, and she said that he no longer
live here no more. And that’s it.
Johnson testified that he refused to testify as appellant asked because it was not true.
Appellant denied inappropriately touching J.V. or asking Johnson to lie for him.
However, he agreed with the prosecutor that “there’s no way [J.V. and D.A.] could have
gotten together to dream up these stories against you.”
During closing argument, the prosecutor referenced Johnson’s testimony as
follows:
[T]oday you heard that Mr. Baldera asked somebody to essentially lie for
him. Mr. Kevin Johnson came in and said that’s what he testified to, that
Mr. Baldera asked him to say he was living in a place that he really wasn’t
at a time when he was living with [J.V.’s mother] and her three children.
Why would he do that?
The jury convicted appellant of the lesser-included offense of indecency with a
child by contact, see id. § 21.11, and this appeal followed.
II. DISCUSSION
A. Standard of Review
When an appellant alleges error in the jury charge but the alleged error was not
objected to at trial, as here, we will reverse only if we find error causing egregious harm.
Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (citing Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). Egregious harm will be found
only if the error deprived the defendant of a fair and impartial trial. Id. The record must
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disclose actual rather than theoretical harm, and the error must have affected the very
basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive
theory. Id. In reviewing for egregious harm, we consider “the entire jury charge, the state
of the evidence, including the contested issues and weight of probative evidence, the
argument of counsel and any other relevant information revealed by the record of the trial
as a whole.” Almanza, 686 S.W.2d at 171.
B. Applicable Law
The trial court is required to give the jury a written charge “distinctly setting forth
the law applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West,
Westlaw through 2017 1st C.S.). An accused generally has the right to an instruction on
any defensive issue raised by the evidence, whether that evidence is weak or strong,
unimpeached or contradicted, and regardless of what the trial court may or may not think
about the credibility of the evidence. Sanchez v. State, 400 S.W.3d 595, 598 (Tex. Crim.
App. 2013) (noting that “[t]his rule is designed to ensure that the jury, not the judge,
decides the credibility of the evidence”).
“Jailhouse-witness testimony is inherently unreliable due to the inmate’s incentive
to better his circumstances.” Phillips v. State, 463 S.W.3d 59, 66 (Tex. Crim. App. 2015).
In recognition of this fact, the legislature enacted article 38.075 of the Texas Code of
Criminal Procedure, which provides:
A defendant may not be convicted of an offense on the testimony of a
person to whom the defendant made a statement against the defendant’s
interest during a time when the person was imprisoned or confined in the
same correctional facility as the defendant unless the testimony is
corroborated by other evidence tending to connect the defendant with the
offense committed.
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TEX. CODE CRIM. PROC. ANN. art. 38.075(a). Corroboration is not sufficient for the
purposes of article 38.075 if the corroboration only shows that the offense was committed.
Id. art. 38.075(b). A statement that is against a defendant’s interest is one that is adverse
to his position. Phillips, 463 S.W.3d at 68.
B. Analysis
Appellant contends that, in light of Johnson’s jailhouse-witness testimony, the trial
court erred by failing to instruct the jury sua sponte on the corroboration requirement of
article 38.075. Assuming, but not deciding, that the trial court’s failure to do so was
erroneous, we will review the record to determine whether appellant suffered egregious
harm as a result of the presumed error.1 See Nava, 415 S.W.3d at 298. In doing so, we
eliminate all of Johnson’s testimony regarding appellant’s statements and “determine if
the remaining inculpatory evidence tends to connect appellant to the offense.” Brooks v.
State, 357 S.W.3d 777, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).
Here, the record contains substantial evidence, aside from Johnson’s testimony,
tending to connect appellant with the offense committed, including J.V.’s direct testimony
that appellant sexually abused her, D.A.’s testimony that appellant abused her in a similar
manner, and appellant’s own admission that the victims could not have “dream[ed] up
these stories.” Therefore, even if the trial court had instructed the jury on article 38.075,
the jury was overwhelmingly likely to have concluded that there was “other evidence
tending to connect the defendant with the offense committed.” TEX. CODE CRIM. PROC.
ANN. art. 38.075(a). Even assuming that the jury, were it instructed on article 38.075,
1On appeal, the State concedes that appellant was entitled to an article 38.075 instruction, but
argues that he did not suffer egregious harm from its omission.
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would have disregarded Johnson’s testimony for lack of corroboration, that testimony was
ultimately insignificant in light of J.V.’s direct testimony of appellant’s abuse. That is, even
considering that the prosecutor mentioned Johnson’s testimony in closing argument, we
cannot conclude that the admission of that testimony “affected the very basis of the case,
deprived the defendant of a valuable right, or vitally affected a defensive theory.” See
Nava, 415 S.W.3d at 298.
Appellant argues that the case is very similar to Phillips, in which the Texas Court
of Criminal Appeals held that the trial court erred in failing to issue an article 38.075
instruction. See Phillips, 463 S.W.3d at 68. Indeed, the jailhouse-witness testimony at
issue in that case, like Johnson’s testimony, indicated that the appellant asked the witness
to lie on his behalf. See id. at 63. However, though the Phillips Court found error in the
lack of an article 38.075 instruction, it remanded to the court of appeals for a harm
analysis, see id. at 68–69, and the court of appeals found on remand that the appellant
did not suffer egregious harm. See Phillips v. State, No. 10-12-00164-CR, 2015 WL
7443625, at *3 (Tex. App.—Waco Nov. 19, 2015, pet. ref’d) (mem. op., not designated
for publication) (noting that, under the egregious harm standard, “the omission of the
instruction is generally harmless unless the corroborating evidence is so unconvincing in
fact as to render the State’s overall case for conviction clearly and significantly less
persuasive”).
Having reviewed the entire record, including the jury charge, the evidence, and
arguments by counsel, we conclude that the lack of an article 38.075 instruction did not
deprive appellant of a fair and impartial trial. See Nava, 415 S.W.3d at 298. Therefore,
any error did not cause egregious harm. We overrule appellant’s issue on appeal.
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III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
23rd day of August, 2018.
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