Sergio Ugalde Ortegon AKA Sergio Leal Garcia v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-98-00540-CR



Sergio Ugalde Ortegon AKA Sergio Leal Garcia, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 47,793, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING

Appellant Sergio Ugalde Ortegon, also known as Sergio Leal Garcia, was convicted in a jury trial of the offense of aggravated sexual assault. See Tex. Penal Code Ann. § 22.021 (West 1994 & Supp. 1999). The trial court assessed appellant's punishment, enhanced by prior felony convictions, at imprisonment for 60 years. Appellant asserts that he did not receive a fair trial and is entitled to reversal of the judgment because:  (1) the State commented on his failure to testify; (2) the State shifted the burden of proof to him; and (3) the trial court erred in refusing to grant a new trial based on jury misconduct. We will overrule appellant's points of error and affirm the trial court's judgment.

Appellant first complains that both during jury voir dire and closing argument the State commented on appellant's failure to testify. During his jury voir dire, defense counsel started to tell the jury some of the facts of the case. The prosecutor objected to defense counsel going outside the scope of voir dire. The trial court instructed defense counsel to continue his voir dire but not to go into evidentiary matters or make an opening statement. Defense counsel then stated:  "Well, there are some things that I need to reveal about Mr. Ortegon." The prosecutor made an imprecise objection saying:  "Let's, let's not get to testify and reveal those things through sworn testimony. We can join up to and have a chance to speak with him." Defense counsel objected to the prosecutor's statement on ground that it was a comment on appellant's failure to testify. After a colloquy between the court and defense counsel, the court ruled and instructed the jury as follows:

THE COURT: Okay. Now, as to the comment as to--[the prosecutor] has made, I will instruct the jury to disregard it and as I have told you before there--the Defense does not have to present any evidence whatsoever. The Defendant is presumed to be innocent and he has the right, and if he so chooses, which he may or may not choose to do, to present any testimony or any evidence. That is strictly up to the Defense and you are not to consider it for any purpose.

And in the event that the Defendant chooses to not testify or to not present evidence, you are not to in any way to hold that against him. That the Defendant is presumed to be innocent and the State has the burden of proving his guilt beyond a reasonable doubt. In that regard please disregard the comment of Mr. Garza in any way and I will instruct you as to the law and I have so done.

[Defense Counsel]:  Your Honor, has the Court sustained my objection to Mr. Garza's statement?

THE COURT:  Yes.

[Defense Counsel]:  Your Honor, at this time we would ask for a mistrial.

THE COURT:  Denied.

Appellant urges that the trial court erred in refusing to grant the mistrial. The prosecutor's comment was made before it was known whether appellant would testify. The trial court's careful jury admonishment adequately protected appellant's rights. The trial court did not err in overruling the motion for mistrial. See Decker v. State, 894 S.W.2d 475, 477 (Tex. Crim. App. 1995); Hall v. State, 619 S.W.2d 156, 157 (Tex. Crim. App. 1980); Hill v. State, 480 S.W.2d 670, 674 (Tex. Crim. App. 1972); McCary v. State, 477 S.W.2d 624, 627 (Tex. Crim. App. 1972).

During the State's closing argument the record shows:

[Prosecutor]:  This case is very simple. This case is about direct evidence. And direct evidence is when someone takes that witness stand and tells you what happens. They tell you what happened, what they saw and what they know. And we'll submit to you in this case, 50 percent of the people who know the facts of this case you heard testify.

We'll submit, ladies and gentlemen --

[Defense counsel]:  That is a comment on the failure of the Defendant to testify. We object to that. We ask the Court to instruct the jury to disregard the statement.

THE COURT:  The objection is overruled.

The Court of Criminal Appeals has stated:

We set out the appropriate jurisprudence in Banks v. State, 643 S.W.2d 129, 134-35 (Tex. Cr. App. 1982), cert. denied, 464 U.S. 904, 104 S. Ct. 259, 78 L. Ed. 2d 244. To violate appellant's constitutional and statutory rights, the language, viewed from the jury's perspective, "must be manifestly intended or of such a character that the jury would necessarily and naturally take it as a comment on the accused's failure to testify." Id. A mere indirect or implied allusion to the accused's failure to testify does not violate appellant's rights. A remark that calls attention to the absence of evidence which only the defendant could supply will result in reversal; however, if the language can reasonably be construed to refer to appellant's failure to produce evidence other than his own testimony, the comment is not improper.

Patrick v. State, 906 S.W.2d 481, 490-91 (Tex. Crim. App. 1995); see also Wolfe v. State, 917 S.W.2d 270, 279-80 (Tex. Crim. App. 1996); Nowlin v. State, 507 S.W.2d 534, 535-37 (Tex. Crim. App. 1974).

Appellant contends that the prosecutor's argument called for evidence only the appellant could have supplied. The record shows that during jury voir dire the State named ten witnesses that might be called to testify. However, the State's only witnesses were the victim and a counselor. Before resting, the State showed that two investigating officers were present and available as witnesses. Although appellant did not testify, he called one witness in his defense. That witness was one of the investigating officers who had been identified as a potential witness by the State during voir dire and before resting its case. The officer who took the victim's first statement was available to testify but was not called by either the State or the defense. The prosecutor's argument referred to "the people who know the facts of this case." We conclude that the prosecutor's argument did not refer to any particular fact or aspect of the case that only appellant's testimony could refute. The trial court did not err in overruling appellant's objection. We overrule appellant's first point of error.

In his second point of error, appellant claims that the State shifted the burden of proof from the State to the appellant by "proffering" witnesses it had not called to testify. Prior to resting its case in chief, the prosecutor in the presence of the jury stated: "Your Honor, also available to testify is George or Bubba Moffatt, Esteban or Steve Ramirez." The jury was removed from the courtroom. Defense counsel asked the trial court to hold the prosecutor in contempt for violating a motion in limine and asked for a mistrial because proffering these witnesses in front of the jury shifted the burden of proof. In the absence of the jury there was an extended discussion between the parties and the trial court. ⁽¹⁾ When the jury returned to the courtroom, the court instructed the jury as follows:

THE COURT:  All right. Be seated, please. The record should reflect that the jury is present as are the attorneys for the State, the Defense and the Defendant and the interpreter.

Ladies and gentlemen, prior to our recess the State had and the Defense had just finished with the last witness, the second witness, Dianne Campbell. You are to disregard any further statements that may have been made by the State after the excusal of the second witness and disregard any other comment or statements that you may have heard the State say regarding any other persons, and don't give that any thought and just put it completely out of your mind. Disregard it, and don't think about it or speculate.

Now, State, do you have other witnesses to call at this time?

[Prosecutor]:  State rests, Your Honor.

THE COURT:  Defense?

[Defense Counsel]:  Your Honor, we call Deputy Bubba Moffatt.

Appellant called as his sole witness Officer George Moffatt to testify in his defense and then rested. Officer Esteban Ramirez was not called as a witness by either the State or appellant. The record shows that it was Ramirez who first made a report of the statements made by the victim. It was appellant's contention at trial that there were conflicts between the victim's statement made to Ramirez and that made to Moffatt. In his opening statement defense counsel told the jury, "Now during the trial I'm going to point out inconsistencies between what the victim told Deputy Ramirez and what she told Deputy Bubba Moffatt." In support of his contention, appellant has cited cases he admits are concerned with jury argument; we find these cases unpersuasive in the context of this case.

The State's evidence proved each element of the offense and appellant has not contested the sufficiency of the evidence. We have concluded that the State's proffer of the witnesses did not as alleged improperly shift the burden of proof to appellant. Moreover, the trial court's admonishment to the jury not to consider the State's proffer of the witnesses was sufficient to cure the error, if any. Appellant's second point of error is overruled.

In his third point of error, appellant urges that the trial court erred in refusing to grant a motion for new trial alleging jury misconduct. The trial court heard the motion for new trial without receiving testimony, but admitted affidavits supporting and controverting the allegations of the motion for new trial. See Tex. R. App. P. 21.7. Appellant offered the jury foreperson's affidavit to support his allegations. Foreperson Lambert's affidavit in pertinent part follows:

During the deliberations there were several things that were brought up that I think the Court should know. Basically, I feel that the other jurors were too biased and did not want to listen to the judge's instructions. We were split 9 to 3 and the 3 that were voting not guilty were going back and forth about whether we would vote guilty. Finally, after the judge sent back the last instructions, the three of us decided to let the majority rule.

The judge asked in the Courtroom whether the verdict we brought back was my verdict. I said I was not sure. I just said that was the way I voted in the room. After that the Court asked again if that was our verdict. I never said yes or no, I just kept quiet. I felt that if we had to go back and deliberate more that the other jurors would be mad at me, so I did not say anything. We had already decided to let the majority rule. It should have been a hung jury.

There were things discussed in the jury room that did not follow the judge's instructions. One thing was that the Defendant had been in jail for a year. Then another juror said that if we found him guilty, he would probably be out in 2 or 3 years at the most or he would just get probation. Another person said that from their experience reading newspapers, no one gets very long. One woman said, "It's not his whole life, it's just a few years."

Most of us wanted the Defendant to be sent back to Mexico instead of being sent to jail, but Mr. San Augustin felt that if we sent him back to Mexico, the Defendant would hurt the girl's sisters in Mexico. We also talked about whether it would be better that he be found not guilty and be sent back to Mexico to save taxpayer money.

A couple of the men said that if they were in his shoes they would have testified. We said the lawyers probably told him to be quiet. A girl then said that remaining quiet, he looked guilty. This same thing came up several times over and over. Each time we talked about it was not long, but the total time we talked about this was lengthy.

We talked about it costing $30,000.00 per year to keep someone in prison. Another thing we talked about was that if we let him go free, he might attack someone's mother or daughter. One guy even said that it would be better that 100 innocent people go to jail than to let one guilty man go free. We also talked about Megan's Law, the law that says that if you are convicted of a felony sex offense a public notice is posted to tell people whether a sex offender lives next-door. I feel awkward, and on second thought unsure of my decision. I just don't know, please forgive me for your time.

To controvert appellant's motion and supporting affidavit, the State offered affidavits of three jurors. Their affidavits follow:

JUROR RIVERA'S AFFIDAVIT

I have read the affidavit of David Wayne Lambert as it pertains to jury deliberations in this case.

Each juror voted to convict the defendant, and it was not a "majority rule." I do not believe that we discussed how long he had been in jail, how much time he would serve in jail, or whether or not he would be deported. I believe someone said something about that the Defendant did not testify, but we agreed that we could not consider that, and knew that he had a problem with not being able to speak English. Something was said about if he would be a danger to other people, but the discussion was that if he was guilty, that he would be a danger, but if he was not guilty, he would not be a danger.

The deliberations centered on the evidence, and whether or not we found the witness believable. Each juror presented his or her point of view on this, and we did not consider anything else in deciding if to find the defendant guilty.

JUROR CAVANA'S AFFIDAVIT

I have read the affidavit of David Wayne Lambert as it pertains to jury deliberations in this case.

Each juror voted to convict the Defendant, and it was not decided to let the majority rule. I recall that something was said about how long the Defendant had been in jail, how long he might serve in jail, but we said that the judge would sentence him if convicted, and that was not up to us. I do not recall any discussions about whether or not the Defendant would be deported. I recall that there were some comments about that the Defendant did not testify, and some jurors stated whether or not they would have chosen to testify. Someone said that it was a decision the Defendant had a right to make or that his attorney would help him make, and this was not discussed as evidence in the case in deciding guilt.

We talked about how much it costs to keep someone in prison for a year, but it was said that was not up to us, because the Court would decide about the sentence if he were convicted. I do not recall that anything was said about whether or not he would attack someone else. I do not recall that anyone said it was better to send 100 innocent to jail than to free one guilty person. I recall we talked about Megan's Law, but we said that sort of thing was up to the Court.

The jury deliberations were centered on the evidence in the case and each juror had a chance to talk about what they thought about the evidence. The jurors who changed their vote from not guilty to guilty did this after we discussed the evidence, and I never saw anything which I would consider as pressure on these jurors to change their vote or vote on anything other than the evidence.

JUROR HERRING'S AFFIDAVIT

I have read the affidavit of David Wayne Lambert as it pertains to jury deliberations in this case.

I was one of the three jurors who initially said I was not sure if the Defendant was guilty, and this was counted as a not guilty vote at first. After having listened to each juror discuss his or her view of the evidence, I voted guilty. I did not feel pressure from anyone to change my vote, and appreciated other jurors discussing the evidence with me. The vote to convict was unanimous, and we did not agree to let the majority rule.

I do not recall if anything was said about the Defendant having been in jail for a year, how soon he might be out of jail, or how long someone serves in jail. I do recall that several of us said that we prayed during the trial for wisdom to do the right thing, and that any discussion about the defendant's "whole life" was that our decision was not about his whole life, but about this case. I recall that it was discussed whether or not the defendant would be deported, but it was said that was not something we had to decide. I believe Mr. Lambert said something about how much it costs to keep someone in prison for a year. I do not recall that we discussed whether the defendant would attack someone else, or that it was better to send innocent to jail than let the guilty go free. I do recall someone mentioned Megan's Law, but we never discussed it as part of the evidence or issues in the case.

I think it is important for people to understand that during the jury deliberations, there were many times when several people were talking at once, and sometimes when small groups would talk among themselves. But when we discussed the evidence, all listened and each person had a chance to say what they thought the evidence showed, and the evidence is what was discussed to decide the case.

I recall that someone said something about whether or not they would have testified, but very little was said about this. We said that whether or not to testify was up to the defendant and that it should not be held against him if he did not.

The trial court admitted in evidence all four affidavits, and then allowed appellant and the State to file trial briefs. Thereafter, the trial court refused to grant the motion for new trial, and noted on the docket: "Court denies Motion for New Trial; letter to attorneys prepared and court will not and did not consider affidavits admitted on 9/3/98, per T.R.E. 606(b)." It is apparent that the trial court did not believe the affidavits should be considered on the motion for new trial because of Rule 606(b). That rule at the time of the court's ruling provided:

(b)  Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify:  (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

Tex. R. Evid. 606(b). The trial court interpreted Rule 606(b) to preclude consideration of the affidavits admitted in evidence. The trial court's interpretation is in agreement with that of leading commentators. See Steven Goode, Olin Guy Wellborn III, M. Michael Sharlot, Courtroom Handbook on Texas Evidence, Rule 606(b) (1999 ed.); Cathleen C. Herasimchuk, Texas Rules of Evidence Handbook, Rule 606(b) (3d ed. 1998).

The 1998 version of Rule 606(b) apparently wipes out Buentello [Buentello v. State, 826 S.W.2d 610 (Tex. Crim. App. 1992)], and all of its progeny. Henceforth, the same rule that has applied to offering the testimony or affidavits of jurors in Texas civil cases will apply to criminal cases. Thus, criminal practitioners and judges may consult and rely upon decisions rendered under former Civil Rule 606(b). This is a dramatic change in criminal proceedings. Under the new rule 606(b), no longer will jurors be competent to testify that they decided the verdict by lot, or that they decided the case based upon another juror's incorrect statement of applicable law, or that they discussed the defendant's failure to testify and used that failure as a basis for convicting him. The new rule is a vast improvement over the former Criminal Rule 606(b) which threw open the door of the jury room too widely, but it remains to be seen whether the revised Rule 606(b) has closed shut the jury deliberation room too firmly in criminal cases.

In sum, Rule 606(b), which permits jurors in both civil and criminal cases to testify post-verdict only to any "outside influence," preserves the finality of verdicts and the sanctity of the jury room even more than does the analogous Federal Rule 606(b), which permits juror testimony on "extraneous prejudicial information" as well.

Herasimchuk at 558-59. The trial court, because of Rule 606(b), could not consider the affidavits as supporting or controverting the motion for new trial allegations of jury misconduct. Therefore there was no evidence to support appellant's motion for new trial allegations of jury misconduct. The trial court did not abuse its discretion in overruling appellant's motion for new trial. Appellant's third point of error is overruled.

The trial court's judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Jones, B. A. Smith and Dally

Affirmed

Filed: July 29, 1999

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

1. The trial court did not hold the prosecutor in contempt for the alleged violation of a motion in limine. The violation of a motion in limine may entitle a party to relief, but any remedies available with regard to such a violation are with the trial court. If its order is violated, the trial court may apply the sanctions of contempt or take other appropriate action. Brazzell v. State, 481 S.W.2d 130, 131 (Tex. Crim. App. 1972). The trial court's refusal to grant the requested sanctions of contempt is not reviewable on appeal.

he juror was not qualified to serve.

Tex. R. Evid. 606(b). The trial court interpreted Rule 606(b) to preclude consideration of the affidavits admitted in evidence. The trial court's interpretation is in agreement with that of leading commentators. See Steven Goode, Olin Guy Wellborn III, M. Michael Sharlot, Courtroom Handbook on Texas Evidence, Rule 606(b) (1999 ed.); Cathleen C. Herasimchuk, Texas Rules of Evidence Handbook, Rule 606(b) (3d ed. 1998).

The 1998 version of Rule 606(b) apparently wipes out Buentello [Buentello v. State, 826 S.W.2d 610 (Tex. Crim. App. 1992)], and all of its progeny. Henceforth, the same rule that has applied to offering the testimony or affidavits of jurors in Texas civil cases will apply to criminal cases. Thus, criminal practitioners and judges may consult and rely upon decisions rendered under former Civil Rule 606(b). This is a dramatic change in criminal proceedings. Under the new rule 606(b), no longer will jurors be competent to testify that they decided the verdict by lot, or that they decided the case based upon another juror's incorrect statement of applicable law, or that they discussed the defendant's failure to testify and used that failure as a basis for convicting him. The new rule is a vast improvement over the former Criminal Rule 606(b) which threw open the door of the jury room too widely, but it remains to be seen whether the revised Rule 606(b) has closed shut the jury deliberation room too firmly in criminal cases.

In sum, Rule 606(b), which permits jurors in both civil and criminal cases to testify post-verdict only to any "outside influence," preserves the finality of verdicts and the sanctity of the jury room even more than does the analogous Federal Rule 606(b), which permits juror testimony on "extraneous prejudicial information" as well.

Herasimchuk at 558-59. The trial court, because of Rule 606(b), could not consider the affidavits as supporting or controverting the motion for new trial allegations of jury misconduct. Therefore there was no evidence to support appellant's motion for new trial allegations of jury misconduct. The trial court did not abuse its discretion in overruling appellant's motion for new trial. Appellant's third point of error is overruled.

The trial court's judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices Jones, B. A. Smith and Dally

Affirmed

Filed: July 29, 1999

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).