Ezequiel Munoz Rodriguez v. State ( 2012 )

Opinion issued April 12, 2012.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-01045-CR

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Ezequiel Munoz Rodriguez, Appellant

V.

The State of Texas, Appellee

On Appeal from the 178th Judicial District Court

Harris County, Texas

Trial Court Case No. 1118656

MEMORANDUM OPINION

          A jury found appellant, Ezequiel Munoz Rodriguez, guilty of the offense of aggravated sexual assault of a child[1] and assessed his punishment at confinement for five years.  In his sole issue, appellant contends that the trial court erred in allowing the State to make improper arguments during the guilt and punishment phases of trial.

          We affirm.

Background

          The complainant testified that in 2003, when she was eight years old and lived in her grandfather’s house, he rented out a smaller house in his backyard to appellant, his wife, and at least four of their children.  The complainant went to the same elementary school as one of appellant’s daughters, B.R., and she would often visit appellant’s house to play with B.R.  One summer day, the complainant was playing with B.R. in the living room of appellant’s house, while appellant, the only other person in the house, was in his bedroom.  B.R. wanted to visit the complainant’s house, so she told the complainant to ask appellant for permission because “if [the complainant] asked him he would let her go.” The complainant entered appellant’s bedroom, noticed he was in the adjoining bathroom, and knocked on the bathroom door.  When she received no answer, the complainant turned and started walking out of the bedroom, but appellant soon exited the bathroom.  The complainant then asked him for his permission for B.R. to visit her house, but appellant did not respond.  Instead, appellant approached the complainant, grabbed her waist, “turned [her] around,” and pulled down her pants.  The complainant “pulled them back up,” but appellant pulled them back down and restrained her hands.  Appellant then pulled down his pants, “inclined” the complainant over his bed, and engaged in anal sexual intercourse with her.  After “three or four minutes,” he stopped, grabbed the complainant’s hand, placed it on his sexual organ, and “squeezed” her hand around it.  Appellant then pulled up his pants and gave permission for B.R. to visit the complainant’s house.  The complainant did not tell anyone about the assault until she told her mother years later because she “was scared to lose [her] friendship” with B.R. 

          Adriana Lopez, the complainant’s mother, testified that in 2003, she lived in her father’s house along with her grandmother, uncle, and the complainant.  Appellant lived in a “smaller house” located behind her father’s house with his wife and six children, but they moved out later that year.  Because of the move, B.R. and the complainant no longer attended the same school and stopped “spend[ing] time at each other’s houses.”  In February 2007, the complainant told her that, when they lived in the house of Lopez’s father, the complainant was playing with B.R. when appellant sexually assaulted her.  Lopez immediately reported to law enforcement authorities what the complainant had said. 

          Maria Rodriguez testified that she moved to the United States from Mexico in 2001 to live with appellant, her husband, who was already living in Houston.  She explained that the complainant and one of her daughters, B.R., would often play together, both in her house and the complainant’s house, but the complainant never entered her bedroom.  Rodriguez noted that her family moved out of the house in December of 2002.  On cross-examination, she testified that the complainant could not have had an opportunity to be alone in the house with appellant because “he was always working.” 

          B.R. testified that when she lived behind the complainant’s house, the girls would play in the complainant’s house “[a]lmost all the time.”  She explained that she never had to ask for permission to visit the complainant’s house and she did not recall the complainant ever entering her parents’ bedroom.

          E.R., appellant’s son, testified that he would often play with the complainant and B.R., but they would usually play in the complainant’s house and would rarely play in his family’s house.  He explained that he and his sister did not need to ask for permission to enter the complainant’s house and he only saw the complainant enter his parents’ bedroom once, when he and his sister were already inside the bedroom.     

 Improper Jury Argument

In his sole issue, appellant argues that the trial court “erred in permitting the improper jury argument of the prosecutor” because the “uninvited comments made by the prosecutor were so prejudicial that the jury’s deliberation was improperly influenced.”

Proper jury argument is generally limited to (1) a summation of the evidence presented at trial, (2) reasonable deductions drawn from that evidence, (3) answers to opposing counsel’s argument, and (4) pleas for law enforcement.  Westbrook v. State, 29 S.W.3d 103, 115 (Tex. Crim. App. 2000) (en banc); Swarb v. State, 125 S.W.3d 672, 685 (Tex. App.—Houston [1st Dist.] 2003, pet. dism’d).  A trial court has broad discretion in controlling the scope of closing argument.  Lemos v. State, 130 S.W.3d 888, 892 (Tex. App.—El Paso 2004, no pet.); see Herring v. New York, 422 U.S. 853, 862–63, 95 S. Ct. 2550, 2555–56 (1975).  The State is afforded wide latitude in its jury arguments and may draw all reasonable, fair, and legitimate inferences from the evidence.  Allridge v. State, 762 S.W.2d 146, 156 (Tex. Crim. App. 1988).

Appellant first complains of the following statement, made by the State during closing argument in the guilt phase of trial,

The one question was . . . [whether the complainant was] ever over at the small house, the backhouse, the second house?  And just amongst those three witnesses, the son, the daughter, the wife, who all have something to gain from him if we walk right out of this building.  We heard, “No,” “Never,” “She was never, ever in the house.” 

Appellant objected to the statement as “[a]rguing outside the scope of the testimony,” and the trial court instructed the jury as follows:

As I indicated to you earlier, neither side would attempt to lead you from what you – mislead you from what you’ve heard.  You’d be guided from what you heard from this witness stand and now what the lawyers say in their argument unless it coincides with what you heard.  Thank you.

          Maria Rodriguez testified that the children would “often” play together, both in her house and the complainant’s house.   B.R. and E.R. both testified that the children “rarely” played in appellant’s house.  Thus, the State’s comment that appellant’s witnesses testified that the complainant had “never” entered their home was outside of the testimony elicited at trial and was not a reasonable deduction from the evidence.  See Westbrook, 29 S.W.3d at 115.  To the extent that the trial court’s response could be interpreted as an implicit overruling of appellant’s objection, we conduct a harmful-error analysis.

          When an argument exceeds permissible bounds, it constitutes reversible error only when an analysis of the record as a whole shows the argument is extreme or manifestly improper, is violative of a mandatory statute, or injects new facts harmful to the accused into the trial proceeding.  Id.; see also Hawkins v. State, 135 S.W.3d 72, 79 (Tex. Crim. App. 2004).  An appellate court, in assessing the harm of an improper argument, looks to three factors: “(1) severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction).”  Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998).

          Here, the State’s characterization of the testimony of the defense witnesses deviated only slightly from their actual testimony.  And the substance of the State’s claim, challenging the credibility of appellant’s witnesses because of their dependence on appellant, was reasonably supported by the evidence.  On cross-examination, Maria Rodriguez testified that she had been married to appellant for thirty-two years and appellant worked to provide for her and their six children.  Counsel may attack the credibility of a defense witness during closing argument if the argument is reasonably supported by the evidence.  See Satterwhite v. State, 858 S.W.2d 412, 425 (Tex. Crim. App. 1993) (“A prosecutor is allowed to argue that the witnesses for the defense are not worthy of belief.”).  Thus, the only impropriety in the statement was slight, and the first Mosley factor indicates that the error was not harmful.

          In regard to the second Mosley factor, although the trial court did not specifically sustain appellant’s objection or instruct the jury to disregard the statement, it did properly instruct the jury to consider the substance of the witnesses’ testimony and not counsel’s characterizations of the testimony.  In regard to the third factor, the complainant testified to the sexual assault and that she was under the age of 14 at the time of the assault, and the details of the complainant’s testimony were corroborated by two outcry witnesses, the complainant’s mother and a police officer who interviewed the complainant at the Children’s Assessment Center.  See Graves v. State, 176 S.W.3d 422, 430–31 (Tex. App.—Houston [1st Dist.] 2004, pet. struck) (stating that third Mosley factor indicated harmless error where victim’s testimony was corroborated by outcry witness and their credibility was not bolstered by improper jury argument).  Thus, the second and third factors also indicate that any error in allowing the State’s argument was harmless.  Accordingly, we hold that any error in the trial court’s ruling regarding the first statement is harmless.

          Appellant next complains of the following statement, which the State also made during the guilt phase of the trial,

In order for you to acquit the defendant you have to determine that I haven’t proven my case beyond a reasonable doubt, right?  So if one of you says, “Well, I just don’t know that [the State] got there.”  It’s really the duty of the other 11 of you to say, “Well, if we don’t believe her, we have to have a reason why she would lie.”

Appellant objected to the statement as “[a]rguing outside the law,” and the trial court overruled the objection.

When reviewing an allegation of an improper statement to the jury, we examine the statement “in light of the entire argument, and not only isolated sentences.”  See Castillo v. State, 939 S.W.2d 754, 761 (Tex. App.—Houston [14th Dist.] 1997, pet. ref’d).  Looking at the context for this particular statement, it is clear that the State was referring to the complainant’s testimony. For example, immediately after making the above statement, the State continued,

Why would that little girl lie?  Not only why would she lie, but why would she keep up the lie over, and over, and over? When she got the medical examination, and she pulled her legs up just like all ladies have to, she was lying?  Why would she have told the doctor that because that is not a comfortable experience for an adult, and it is not a comfortable experience for a 12-year-old.

          We read the State’s argument to be a response to appellant’s closing argument challenging the credibility of the complainant and asserting that she was not telling the truth.  For example, appellant argued,

We heard from the complainant . . . that she didn’t come forward and cry out earlier because she was afraid of losing [B.R.’s] friendship.  When testimony indicates that, they basically were already apart in the year 2003, by going to separate schools, and they were not close anymore. . . .

So if that was the case, she had all of the year 2003, 2004, 2005, 2006, and it wasn’t until the year 2007 that she came forward with this outcry to her mother.

Another point very telling.  She stated that this—when this occurred she didn’t yell out.  She didn’t tell anybody, she didn’t cry, she didn’t whimper, she didn’t tell anybody she was in pain, nothing.  I think that’s very telling, very important. . . .

[T]his assertion that she needed to get permission . . . for [B.R.] to come to her house, again, does not make sense.

          Because the State’s second argument was directed toward rebutting appellant’s assertion that the complainant had fabricated her testimony, it constituted permissible jury argument.  See Westbrook, 29 S.W.3d at 115; Kibble v. State, 340 S.W.3d 14, 23 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) (holding that trial court did not err in permitting State to respond to “argument of opposing counsel challenging the veracity” of State’s witnesses).  Accordingly, we hold that the trial court did not err in overruling appellant’s second objection. 

          Finally, appellant complains of the following statement, made by the State during the punishment phase of the trial,

I anticipate that [appellant’s counsel] is going to stand up here, he’s going to ask you for probation for his client because his client’s family wants him to get probation and because he wants probation.  But I dare him to give you any good reason other than, well, he wants it.  That would justify anything less than a severe prison punishment.  Thank you.    

However, appellant failed to object to this statement at trial.  “Before a defendant will be permitted to complain on appeal about an erroneous jury argument or that an instruction to disregard could not have cured an erroneous jury argument, he will have to show he objected and pursued his objection to an adverse ruling.”  Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1993).  Accordingly, we hold that appellant has waived any complaint about this third statement for review.

We overrule appellant’s sole issue.

Conclusion

          We affirm the judgment of the trial court. 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Massengale, and Huddle.

Do not publish.  Tex. R. App. P. 47.2(b).

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[1]           See Tex. Penal Code Ann. § 22.021(a)(1)(B),(a)(2)(B) (Vernon Supp. 2011).