Gilberto Rangel v. State ( 2017 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-15-00074-CR
NO. 09-15-00075-CR
____________________
GILBERTO RANGEL, Appellant
V.
THE STATE OF TEXAS, Appellee
_______________________________________________________ ______________
On Appeal from the 359th District Court
Montgomery County, Texas
Trial Cause No. 13-12-13516 CR (Counts 1 and 2)
________________________________________________________ _____________
MEMORANDUM OPINION
In seven issues, Gilberto Rangel appeals his convictions based on the jury’s
determination that he had sexually assaulted the same complaining witness twice on
the same day. See Tex. Penal Code Ann. § 22.011(a)(1)(A), (B) (West 2011). Three
of Rangel’s issues—issues three, four, and six—assert claims of ineffective
assistance of trial counsel. Two of the other issues—issues one and two—argue the
trial court abused its discretion by failing to conduct a hearing on Rangel’s motion
1
for new trial, and by denying his motion. Issue five asserts that Rangel is entitled to
another trial based on a compliment the prosecutor gave the complaining witness
about her testimony. In his last issue, issue seven, Rangel contends the evidence does
not support the jury’s determinations that on two occasions, he sexually assaulted
the complaining witness.
We conclude that issues one through four, six, and seven are without merit,
and that Rangel failed to preserve the complaints he makes in issue five for our
review on appeal. We overrule Rangel’s issues, and we affirm the trial court’s
judgments with respect to counts one and two in cause number 13-12-13516 CR.
Background
The testimony from Rangel’s trial indicates that the complaining witness,
“Olivia,”1 is Rangel’s sister-in-law. The evidence from Rangel’s trial shows that for
many years before the sexual encounters at issue, Rangel and Olivia engaged in
infrequent but consensual sexual encounters. Additionally, for several years before
the encounters at issue, Rangel, Olivia, and several other members of their respective
families lived under the same roof. According to Olivia, in the months leading up to
1
To protect the complaining witness’s identity, we use the pseudonym
“Olivia” instead of using the complaining witness’s real name. See Tex. Const. art.
I, § 30 (granting crime victims “the right to be treated with fairness and with respect
for the victim’s dignity and privacy throughout the criminal justice process”).
2
the alleged sexual assaults, which occurred on January 30, 2013, she told Rangel
that she wanted out of their relationship. Olivia explained that despite her request,
Rangel continued to pursue her even though she told him that she no longer wanted
to be with him.
The jury also heard testimony from Olivia that in the period she told Rangel
that she no longer wanted him, she was dating “Seth,”2 a man who lived in Dallas.
Olivia testified that on January 30, 2013, she met Seth in Conroe. According to
Olivia, Rangel saw her with Seth in Seth’s truck while the truck was parked in a
parking lot of a restaurant. When Rangel saw them together, Rangel approached the
truck. As she opened the door, he pulled her out and slapped her. Next, Rangel and
Olivia got into her truck, which she had parked in the same parking lot. Olivia
explained that Rangel drove her truck from the restaurant, and while driving around,
Rangel continued to hit her. Olivia indicated that at one point, she bit Rangel on the
hand. After driving around, Rangel stopped and purchased beer. Olivia stated that
she drank some of the beer because she was “very stressed[,]” and they ultimately
pulled into the parking lot of a hotel where Rangel asked her to go inside. Olivia
testified that she refused Rangel’s request to go to a motel room; instead, she told
2
To protect the identity of the man Olivia was dating when the sexual assaults
allegedly occurred, we identify him by using the name “Seth” in the place of his real
name.
3
Rangel again that she “did not want to be with him.” They left the parking lot of the
hotel, and Rangel ultimately parked Olivia’s truck in a parking lot some distance
from a large department store. Olivia testified that while in the department store’s
parking lot, Rangel hit her and then demanded sex. According to Olivia, she refused.
Olivia then explained that at that point, Rangel forced her to engage in oral
intercourse and to subsequently engage in vaginal intercourse.
Several witnesses provided evidence that tends to support Olivia’s account
about the events that occurred on January 30, 2013. Olivia’s sister testified that
within two days of the incident, Olivia informed her that Rangel had sexually
assaulted her. Officer Thomas Taylor, a patrol officer employed by the City of
Conroe Police Department, testified that he spoke to Olivia on February 5, 2013.
Officer Taylor indicated that Olivia speaks Spanish, but that he communicated with
her through an interpreter. Officer Taylor testified that Olivia told him that Rangel
sexually assaulted her on January 30. Seth, the man that Rangel saw Olivia with on
January 30, testified that he and Olivia were together when Rangel came to the
parking lot of the restaurant and forcibly removed Olivia from his vehicle.
Rangel presented several witnesses in his defense during the guilt-innocence
phase of his trial. Rangel also testified during the trial. Rangel’s testimony indicates
that Olivia invited the sexual encounters that occurred on January 30 and that she
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participated in them willingly. Rangel testified that two weeks before January 30, he
and Olivia engaged in a consensual sexual encounter. Rangel explained that on
January 30, he saw Olivia leaving a restaurant with a man that he did not know. In
his testimony, Rangel acknowledged that seeing Olivia with the man that evening
upset him. Rangel also indicated that he saw Olivia kiss the man that evening in the
restaurant’s parking lot. According to Rangel, when Olivia saw him in the parking
lot, she opened the truck’s door, he grabbed her by the arm, and he told the man
Olivia was with to leave. Rangel acknowledged that he argued with Olivia after they
left together in her truck. Rangel indicated after leaving the parking lot, he drove
around for a while, and then he stopped at a gas station where he bought a six-pack
of beer. According to Rangel, Olivia consumed five of the six beers, and he
ultimately drove Olivia’s truck to a hotel where he knew that Olivia and the man he
saw her with in the restaurant’s parking lot had been together earlier that day. Rangel
explained that he then left the hotel parking lot, drove to a gas station, filled the truck
with gas, and then he took Olivia in the truck to the parking lot near a large
department store. According to Rangel, while in the parking lot, Olivia told him that
she loved him and that the man he had seen her with that day, Seth, was just her
friend. Rangel testified that while they were together in the department store’s
parking lot, “[Olivia] unbuttoned my pants . . . and she began to give me oral sex.”
5
After engaging in oral intercourse, Rangel explained that he took Olivia and parked
her truck near the access road of the highway. Rangel explained that after he parked
near the highway, Olivia jumped into the back seat of the truck and removed her
pants and underwear. At that point, Rangel indicated that he engaged in sexual
intercourse with Olivia, and his testimony indicates that both of the sexual
encounters he had with Olivia on January 30 were consensual. Rangel also explained
that on January 31, he moved to his son’s house from the house where he had lived
for years under the same roof with Olivia.
Olivia’s sister and her brother-in-law testified during Rangel’s trial. Both
indicated that they were home on the night of January 30, they noticed Olivia had
bruises indicating someone hit her, but both stated that Olivia did not tell them on
the evening of January 30 that Rangel sexually assaulted her. Both Olivia’s sister
and brother-in-law also indicated that when Rangel came home later that night,
Rangel initially denied hitting Olivia, but he later admitted doing so. According to
Rangel’s sister and brother-in-law, Rangel told them to ask Olivia why he hit her.
Sufficiency of the Evidence
The argument Rangel presents in his seventh issue, were it to be successful,
would require the court to render judgments of acquittal on his convictions for sexual
assault. Therefore, we address issue seven first. In issue seven, Rangel suggests that
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the inconsistencies in Olivia’s testimony were so significant that “no rational jury
could have found [Olivia’s account regarding the two alleged sexual assaults] to be
true beyond a reasonable doubt.”
Rangel suggests that the evidence was insufficient to prove he sexually
assaulted Olivia for several reasons, which include that (1) the evidence showed that
Olivia had been involved with Rangel in a longstanding affair when the sexual
assaults allegedly occurred; (2) discrepancies exist between Olivia’s account that she
did not willingly leave a restaurant parking lot with Rangel and the account of the
individual who Rangel discovered Olivia with in the restaurant parking lot, whose
testimony Rangel suggests shows she left the parking lot with him willingly; (3)
Olivia’s behavior after the sexual assaults allegedly occurred, indicating that Olivia
willingly followed Rangel home instead of taking the opportunities she had to report
any alleged sexual assaults, is behavior that Rangel contends is inconsistent with
Olivia’s claim that their sexual encounters were not consensual; (4) Olivia gave the
police inconsistent accounts about the locations where the assaults were alleged to
have occurred, inconsistencies that Rangel argues cast doubt on Olivia’s version of
the events that occurred on the night in question; (5) the account Olivia provided to
police in an effort to explain why she failed to report the sexual assaults sooner is a
circumstance that Rangel argues casts doubt on Olivia’s version that her sexual
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encounters with him were not consensual; and (6) Olivia’s failure to immediately
inform her relatives about the sexual assaults the night they occurred, according to
Rangel, casts doubt on whether the sexual encounters were not consensual.
In reviewing whether sufficient evidence is in a record to support a
defendant’s conviction, we consider all of the evidence in the record, regardless of
whether it was properly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). In considering in an appeal what inferences a jury could reasonably
make from the evidence, both direct and circumstantial evidence may be equally
probative regarding whether a defendant is guilty of the crime for which he was tried.
Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013). Under the law, the
jury is allowed to decide both whether the witnesses who testified were credible and
to decide what weight, if any, to attach to a witness’s testimony. Jackson v. Virginia,
443 U.S. 307, 319 (1979). As long as each of the inferences the jury makes from the
evidence before them is supported by the evidence, a jury may draw multiple
inferences from the facts presented during the trial. Id.; see Hooper v. State, 214
S.W.3d 9, 16-17 (Tex. Crim. App. 2007) (stating that “courts of appeals should . . .
determine whether the necessary inferences are reasonable based upon the combined
and cumulative force of all the evidence when viewed in the light most favorable to
the verdict”). Nonetheless, a jury is not permitted to draw conclusions based on
8
speculation, since doing so would not result in a verdict that is based on a standard
of beyond reasonable doubt. Hooper, 214 S.W.3d at 16. Ultimately, an appellate
court must presume the jury resolved all conflicts in the evidence in favor of the
verdict when the record is such that the jury could have either reasonably acquitted
the defendant or found him guilty, and we are required on such a record to defer to
the jury’s determination. Jackson, 443 U.S. at 326.
Although Olivia’s and Rangel’s accounts about the events that occurred on
January 30 were significantly different, we are required to defer to the jury’s
determination that the encounters were not consensual unless the jury must have had
a reasonable doubt to the contrary. See Brooks v. State, 323 S.W.3d 893, 899 (Tex.
Crim. App. 2010). In this case, the evidence before the jury includes the complaining
witness’s testimony that she did not consent to Rangel’s sexual advances on January
30, 2013, as well as circumstantial evidence showing that Rangel was jealous
because he had seen Olivia with another man, that Rangel hit Olivia while arguing
with her about whether she was having a relationship with Seth, and evidence
showing that Olivia advised her sister and a police officer of the assaults a few days
after January 30, the evening the State alleged the sexual assaults occurred. With
respect to Rangel’s complaints about the delays that occurred in Olivia’s outcry
regarding the assaults, the jury could have reasonably believed that any delay in
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Olivia’s reporting of the assaults was related to the time it took Olivia to decide
whether she wanted to report a family member for committing sexual assaults
against her under circumstances that would require her to reveal that she was
involved both in a sexual relationship with her brother-in-law and a dating
relationship with a man to whom she was not married.
Generally, the testimony of an adult victim who identifies the defendant as the
person who committed a sexual assault is sufficient to support a jury’s verdict
convicting the defendant of the assault. Garcia v. State, 563 S.W.2d 925, 928 (Tex.
Crim. App. [Panel Op.] 1978). With respect to Olivia’s allegedly delayed outcry
regarding the sexual assaults, section 38.07 of the Code of Criminal Procedure
provides that a conviction for sexual assault “is supportable on the uncorroborated
testimony of the victim of the sexual offense if the victim informed any person, other
than the defendant, of the alleged offense within one year after the date on which the
offense is alleged to have occurred.” See Tex. Code Crim. Proc. Ann. art. 38.07(a)
(West Supp. 2016); Hernandez v. State, 426 S.W.3d 820, 824 (Tex. App.—Eastland
2014, pet. ref’d); Benton v. State, 237 S.W.3d 400, 404 (Tex. App.—Waco 2007,
pet. ref’d). Olivia’s reports of the alleged assaults to her sister and a police officer
occurred within a week, a period well within the time period identified in the Code
of Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.07(a).
10
Considering the jury’s right to judge the credibility and weight of the
testimony that is admitted before it at trial, the inconsistencies Rangel points to in
support of his argument complaining about the sufficiency of the evidence are not
so significant that the jury could not have reasonably decided to believe Olivia’s
account that she did not consent to Rangel’s sexual advances on the evening of
January 30, 2013. We overrule Rangel’s seventh issue.
Prosecutor’s Comment on Witness’s Testimony
In issue five, Rangel complains about a sidebar comment made by the
prosecutor just after Olivia finished testifying, when he said: “No further questions.
We’re proud of her. She did [a] great job. Can she be excused?” In his appeal, Rangel
complains that the prosecutor’s comment interfered with his right to receive a fair
trial.
The record does not show that Rangel’s complaint about the prosecutor’s
statement was preserved for appeal. See Tex. R. App. P. 33.1 (preserving error for
appellate review requires the complaining party to show that he presented his
complaint to the trial court in a timely request, objection, or motion and that the trial
court ruled on the request). Instead, the record shows that after the prosecutor made
the comment, Rangel’s attorney asked that Olivia stay at the courthouse in the event
that she was needed to testify when Rangel presented his defense.
11
By failing to object to the prosecutor’s comment when it occurred, the
complaints Rangel makes about the prosecutor’s comment were not preserved for
appellate review. See Tex. R. App. P. 33.1(a); Unkart v. State, 400 S.W.3d 94, 98-
99 (Tex. Crim. App. 2013); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.
2012); Jasper v. State, 61 S.W.3d 413, 420-21 (Tex. Crim. App. 2001); see also Blue
v. State, 41 S.W.3d 129, 133 (Tex. Crim. App. 2000) (plurality op.). In his brief,
Rangel does not argue that the error was fundamental; nevertheless, we note that
fundamental errors involving statements by prosecutors occur only when their
comments rise “to such a level as to bear on the presumption of innocence or vitiate
the impartiality of the jury.” Jasper, 61 S.W.3d at 421; see also Mendez v. State, 138
S.W.3d 334, 340 (Tex. Crim. App. 2004) (explaining absolute or systemic
requirements from which errors concerning them can be raised on the appeal for the
first time); Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002). The
alleged error concerning the prosecutor’s comment did not amount to fundamental
error because it did not implicate any of the matters identified in Jasper. See Jasper,
61 S.W.3d at 421. Because Rangel failed to object to the comment, his complaints
about the comment were not preserved for our review on appeal. See Tex. R. App.
P. 33.1(a). We overrule Rangel’s fifth issue.
Effective Assistance of Counsel
12
In issues three, four, and six, Rangel argues that he received ineffective
assistance of counsel during the guilt-innocence phase of his trial. According to
Rangel, the attorney who represented him in his trial was ineffective because he (1)
failed to request a limiting instruction during trial and in the charge regarding
evidence showing that in the months leading up to January 30, Rangel continued to
call and follow Olivia to public places after she told him that she did not want to be
with him; (2) elicited testimony from Olivia during the trial indicating that in the last
several sexual encounters she had with Rangel before January 30, Rangel forced her
to have sex and hit her; and (3) failed to object to the prosecutor’s comment thanking
Olivia for her testimony, which we discussed in issue five.
To establish a claim of ineffective assistance of counsel, the defendant must
show that counsel’s performance fell below an objective standard of reasonableness,
and that a reasonable probability exists to show that, but for counsel’s error, the
result of the proceeding would have been different. Strickland v. Washington, 466
U.S. 668, 687-88 (1984). The defendant making an ineffective assistance of counsel
claim bears the burden of developing the facts required to show that the attorney
who represented the defendant rendered ineffective assistance based on the standards
identified in Strickland. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App.
1994) (citing Strickland, 466 U.S. at 689). Additionally, the defendant must
13
overcome the “strong presumption that counsel’s conduct fell within the wide range
of reasonable professional assistance.” See Thompson v. State, 9 S.W.3d 808, 813
(Tex. Crim. App. 1999) (citing Strickland, 466 U.S. at 690). Ordinarily, on direct
appeal, the record will not have been sufficiently developed during the trial
regarding trial counsel’s alleged errors to demonstrate in the appeal that trial counsel
provided ineffective assistance under the Strickland standards. Menefield v. State,
363 S.W.3d 591, 592-93 (Tex. Crim. App. 2012). Moreover, the difficulty in
showing that trial counsel was ineffective is particularly difficult when the record
that is created in a defendant’s trial fails to show why trial counsel chose to do
something or failed to do something that is the subject of the complaints the
defendant raises in his appeal.
In this case, although Rangel filed a motion for new trial, the motion that he
filed did not level the same complaints about counsel that Rangel argues in issues
three, four, and six. As a result, the record fails to contain explanations by Rangel’s
trial counsel regarding why he handled the matters that are the subject of Rangel’s
appellate issues in the manner they were handled. Given a record that does not
contain trial counsel’s explanation regarding the matters made the subject of the
complaints in the appeal, Rangel has failed to affirmatively demonstrate based on
the record before us that his complaints about trial counsel have any merit.
14
Moreover, we must presume that the decisions Rangel’s trial attorney made in
presenting his case to the jury were appropriate. See Scheanette v. State, 144 S.W.3d
503, 509-10 (Tex. Crim. App. 2004). We hold that Rangel has failed to demonstrate
that he received ineffective assistance of trial counsel based on the record that is
currently before us. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App.
2005). We overrule Rangel’s third, fourth, and sixth issues.
Motion for New Trial
In issues one and two, Rangel argues that the trial court abused its discretion
by denying his request for a hearing on his motion for new trial on punishment and
by denying that motion. On appeal, Rangel asserts that his attorney was ineffective
because he failed to talk to and present two witnesses, Olivia’s daughters,3 who he
claims would have provided evidence that would have been favorable to his defense.
According to Rangel, the testimony of Olivia’s daughters “would have made a
difference in the punishment verdict.”
Rangel relies on two of the affidavits that he attached to his motion for new
trial to support his argument that Olivia’s daughters should have been called during
3
Olivia’s daughters are also his nieces, who had lived in the same house
with Rangel and Olivia.
15
the punishment phase of his trial.4 One of the affidavits Rangel relies on is the
affidavit of a private investigator, who spoke with Olivia’s two daughters after the
trial.5 The other affidavit Rangel relies on in his appeal was signed by one of the
attorneys who represented him during his trial. The attorney’s affidavit reflects that
he would have called Olivia’s daughters during the punishment phase of the case
based on his understanding that they would have testified in Rangel’s favor
regarding the fact that Olivia bruises easily, that her bruises appear worse than they
are, that they grew up in a home where Rangel was present and he was like a second
dad to them, that they think Rangel’s sentence is too harsh, that they were led to
4
Although Rangel’s motion for new trial is supported by additional affidavits,
the other affidavits concern issues that Rangel has not argued on appeal.
5
The affidavit of the private investigator reflects that he spoke with Olivia’s
two daughters. The investigator’s affidavit indicates that both of Olivia’s daughters
desired to help Rangel in any way possible. It further reflects that one of Olivia’s
daughters told the investigator that she was not aware that Olivia had claimed that
Rangel sexually assaulted her, although she indicated that Olivia did tell her about a
physical assault without providing her any further details. The affidavit reflects that
Olivia’s other daughter told the investigator that Olivia never told her about the
assaults, although her aunt told her that Rangel had hit her mother the day after the
incident occurred. The investigator’s affidavit indicates that both of Olivia’s
daughters told the investigator that Olivia bruises easily, and because of her
complexion, bruises to her face appear worse than they really are. One of Olivia’s
daughters told the investigator that she had lived with Rangel her entire life, and she
felt that Rangel was a second dad who had always been there for her. The
investigator’s affidavit suggests that both of Olivia’s daughters told him that when
they asked Olivia about why Rangel assaulted her, Olivia said “she did not know.”
16
believe by Olivia that Rangel had only assaulted her, and that one of Olivia’s
daughters indicated that Olivia was trying to make herself look like a victim to hide
her affair with Rangel, an affair that she had always concealed.6
Appellate courts review a trial court’s denial of a defendant’s request for a
hearing on a motion for new trial using an abuse-of-discretion standard. Smith v.
State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). A trial court abuses its
discretion in failing to hold a hearing on a motion for new trial if the motion raises
matters that are not determinable from the record and establishes reasonable grounds
indicating that the defendant could be entitled to relief. Id. at 338-39. Because a trial
court exercises discretion in deciding whether a hearing is necessary on the matters
a defendant raises in his motion seeking a new trial, “we reverse ‘only when the trial
judge’s decision was so clearly wrong as to lie outside that zone within which
reasonable persons might disagree.’” Id. at 339 (quoting State v. Gonzalez, 855
S.W.2d 692, 695 n.4, 696 (Tex. Crim. App. 1993)). When a motion for new trial
relies on a claim of ineffective assistance of counsel, as does Rangel’s, the
defendant’s motion “must allege sufficient facts from which a trial court could
reasonably conclude both that counsel failed to act as a reasonably competent
6
We reiterate that the affidavit of Rangel’s attorney does not include any facts
related to the matters Rangel complains about in issues three, four, and six of his
appeal.
17
attorney and that, but for counsel’s failure, there is a reasonable likelihood that the
outcome of his trial would have been different.” Id. at 341; see also Strickland v.
Washington, 466 U.S. 668.
In his appeal, Rangel complains that he “filed a motion for new trial requesting
a hearing on whether or not he received ineffective assistance of counsel during the
punishment stage of trial for [trial counsel’s] failure to investigate and call [Olivia’s
daughters] as witnesses[.]” Issues one and two do not claim that Rangel is entitled
to another trial to resolve whether he was guilty based on the testimony of Olivia’s
daughters. However, the majority of the matters in the affidavits of Rangel’s private
investigator and his attorney discussing what Olivia’s daughters knew concern
matters that the trial court could have reasonably viewed as irrelevant to the
punishment phase of Rangel’s trial. The matters the affidavits identify that might
have been relevant to punishment—that Rangel had been a father-figure to Olivia’s
daughters when they grew up, that Rangel was a person of good character, and that
Olivia was not a reliable witness—would have been testimony that was cumulative
of similar testimony the jury heard during the punishment hearing regarding
Rangel’s character, matters already before the jury based on the testimony admitted
during the punishment hearing from Rangel’s ex-wife, his former brother-in-law,
and his son.
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The witnesses during Rangel’s punishment hearing testified that Rangel was
a family man loved by his family; a hard worker; and a law-abiding person who,
should he receive probation, would have their help in completing it. The jury was
also presented with the testimony of Rangel’s ex-wife during the trial that Olivia had
a bad reputation for truthfulness. Rangel’s son and former brother-in-law, two of the
individuals who testified in Rangel’s defense and who addressed his good character,
are law enforcement officers. Thus, while the affidavit of Rangel’s trial attorney
stated that he thought there was a reasonable probability “that the outcome of the
punishment phase of trial would have been different,” his bare conclusion fails to
demonstrate why the proposed testimony from Olivia’s daughters would have
provided the jury with evidence that was not cumulative of similar testimony that
was before them from other witnesses and how the testimony of Olivia’s daughters,
given that it would have been cumulative, would have caused the jury to return with
a reduced sentence.
We conclude that the trial court could reasonably view the matters discussed
in the affidavits of Rangel’s investigator and his attorney as testimony that would
have been cumulative of similar evidence that was already before the jury.
“Evidence which is merely cumulative will rarely be judged by trial or appellate
courts to be of such weight as likely to bring about a different result.” Kennerson v.
19
State, 984 S.W.2d 705, 708 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d); see
also Ruiz v. State, No. 14-15-00285-CR, 2016 Tex. App. LEXIS 8732, at *17 (Tex.
App.—Houston [14th Dist.] Aug. 11, 2016, no pet.) (mem. op., not designated for
publication).
We hold the trial court did not abuse its discretion by denying Rangel’s
request for a hearing on his motion because the motion reflects the testimony of the
witnesses that Rangel desired to call in another punishment hearing would be
cumulative of testimony that the jury had already considered. See Tutt v. State, 940
S.W.2d 114, 121 (Tex. App.—Tyler 1996, pet. ref’d). For the same reason, we
further conclude the trial court did not abuse its discretion by denying Rangel’s
motion for new trial. Id. We overrule issues one and two.
Having overruled all of Rangel’s issues, we affirm the judgments the trial
court rendered on Counts 1 and 2 in cause number 13-12-13516 CR.
AFFIRMED.
______________________________
HOLLIS HORTON
Justice
Submitted on March 25, 2016
Opinion Delivered January 18, 2017
Do Not Publish
Before Kreger, Horton, and Johnson, JJ.
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