Jose Antonio Cervantes v. State ( 2019 )


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  • Affirmed as Modified and Opinion Filed August 2, 2019.
    In The
    Court of Appeals
    Fifth District of Texas at Dallas
    No. 05-18-00586-CR
    JOSE ANTONIO CERVANTES, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the Criminal District Court No. 2
    Dallas County, Texas
    Trial Court Cause No. F17-76189-I
    MEMORANDUM OPINION
    Before Justices Bridges, Brown, and Nowell
    Opinion by Justice Nowell
    A jury convicted Jose Antonio Cervantes of indecency with a child by contact and assessed
    punishment at four years in prison. In five issues, appellant contends the trial court abused its
    discretion by overruling his objection to the State’s delay in amending its witness list, he was
    egregiously harmed by the punishment charge because it required punishment to be assessed in
    terms of whole years, the trial court violated article 36.27 regarding jury communications, the bill
    of costs includes unconstitutional fees, and clerical errors in the judgment should be corrected. We
    agree the judgment should be modified to correct a clerical error. In all other respects, we overrule
    appellant’s issues and affirm the trial court’s judgment as modified.
    BACKGROUND
    The complainant, A.S., was thirteen years old at the time of the offense. Complainant’s
    mother, M.S., dropped her and her three younger sisters off at the home of M.S.’s aunt, Maria,
    who is married to appellant. Maria agreed to watch the children while M.S. and her husband went
    out for the evening with Maria’s daughter and her husband. M.S. returned later that night to pick
    up the children.
    On the way home, A.S. asked her mother questions about someone touching a person
    inappropriately. A.S. said she had seen a story on television about such touching. When they got
    home, M.S. asked A.S. in private if anything had happened to her. A.S. told her mother she had
    been watching television in Maria’s house when appellant came into the room and told her she
    was growing up and becoming more beautiful. Appellant then touched A.S.’s breast over her
    clothes with his hand. As A.S. moved away, appellant touched her butt over her clothes. Later that
    night, appellant approached her from behind while she was lying on the bed next to her younger
    sister. Appellant lifted her shirt and put his mouth on her breast and touched her private part
    between her legs. Afterwards he made a “pinky promise” with her not to tell anyone what
    happened.
    A.S. testified at trial about the details of the incident. She also testified she called her friend,
    J.M., from appellant’s house and told her that appellant had touched her. A.S.’s ten-year-old sister,
    V.S., testified she saw appellant touch A.S.’s breast. J.M. testified that A.S. called her that night,
    crying and upset.
    DISCUSSION
    A. Objection to Amended Witness List
    Appellant argues in his first issue that the trial court abused its discretion by denying his
    objection to the testimony of V.S. and J.M. Defense counsel filed a request for disclosure of the
    State’s witnesses on March 30, 2018. The State’s original witness list did not include V.S. and
    J.M. On April 3, however, the State filed an application for a subpoena for V.S. and one for J.M.
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    on April 10. The State amended its witness list on the day of jury selection, April 18, 2018, adding
    V.S. and J.M. as witnesses. Appellant objected that the witnesses were not timely listed on the
    witness list and argued their testimony should be excluded. The trial court overruled the objection.
    Both witnesses testified on April 19, 2018.
    Upon request by the defense, notice of the State’s witnesses should be given. Stoker v.
    State, 
    788 S.W.2d 1
    , 15 (Tex. Crim. App. 1989), abrogated on other grounds by Leday v. State,
    
    983 S.W.2d 713
    (Tex. Crim. App. 1998). If the trial court allows an undisclosed witness to testify,
    we review the decision under an abuse of discretion standard of review. See Patterson v. State,
    
    138 S.W.3d 643
    , 650 (Tex. App.—Dallas 2004, no pet.); Castaneda v. State, 
    28 S.W.3d 216
    , 223
    (Tex. App.—El Paso 2000, pet. ref’d); Horner v. State, 
    129 S.W.3d 210
    , 214 (Tex. App.—Corpus
    Christi 2004, pet. ref’d). In determining whether the trial court abused its discretion, we consider
    whether (1) the prosecutor acted in bad faith in failing to provide the defense with the name of the
    witness and (2) the defendant could reasonably anticipate that the witness would testify despite the
    State’s failure to disclose the witness’s name. See Wood v. State, 
    18 S.W.3d 642
    , 649 (Tex. Crim.
    App. 2000) (applying test to witness who was not timely disclosed); 
    Stoker, 788 S.W.2d at 15
    ;
    
    Horner, 129 S.W.3d at 214
    ; 
    Castaneda, 28 S.W.3d at 223
    . In determining whether the State acted
    in bad faith in failing to provide the name of the witness, we consider whether the State intended
    to deceive, whether the State’s notice left adequate time to prepare, and whether the State freely
    provided the defense with information. 
    Horner, 129 S.W.3d at 214
    ; Hardin v. State, 
    20 S.W.3d 84
    , 88 (Tex. App.—Texarkana 2000, pet. ref’d).
    Appellant argues strenuously that the prosecutor acted in bad faith by not supplementing
    his witness list when he requested subpoenas for the witnesses several days before trial. Although
    the State never offered an explanation for why it waited several days after requesting subpoenas
    for V.S. and J.M. to supplement its witness list, there is no evidence of an intent to deceive defense
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    counsel. The State notified appellant the day before the witnesses testified and, discussed below,
    the State previously provided some information regarding the witnesses to the defense. Further,
    even if supported by the record, bad faith is only part of the analysis. We also consider whether
    the defense could have reasonably anticipated the testimony of the witnesses.
    There is evidence the State maintained an open file policy and shared what information it
    had on V.S. and J.M. with defense counsel. Defense counsel was aware of V.S.’s interview with
    Dallas Children’s Advocacy Center and indicated she had expected V.S. would be on the original
    witness list. Defense counsel thought the State made a strategic decision not to call V.S. because
    her interview differed from that of the complaining witness. Defense counsel also stated she did
    not know J.M.’s last name until she was listed on the amended witness list and had not had the
    opportunity to talk with her. The State pointed out that V.S.’s interview was disclosed in discovery
    and her connection with the case was no surprise to the defense. The State further argued that
    J.M.’s name did appear in the incident report turned over to the defense and that the State had not
    yet spoken with J.M. The prosecutor explained that he subpoenaed J.M. after talking with other
    witnesses and put her on the amended witness list out of an abundance of caution if he decided to
    call her as a witness. The prosecutor then offered to make J.M. available to the defense for an
    interview. The record indicates defense counsel interviewed J.M. outside the courtroom shortly
    before she testified.
    Based upon this record, the trial court could reasonably conclude the State did not act in
    bad faith and that the defense could reasonably have anticipated the witnesses would testify. We
    conclude the trial court did not abuse its discretion by overruling appellant’s objection. We
    overrule appellant’s first issue.
    B. Punishment Charge Error
    In his second issue, appellant argues he was egregiously harmed because the punishment
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    charge and verdict form required the jury to assess punishment in terms of whole years. Appellant
    was convicted of a second degree felony offense. The punishment range for a second degree felony
    is imprisonment “for any term of not more than 20 years or less than 2 years” and a potential fine
    not to exceed $10,000. TEX. PENAL CODE ANN. § 12.33.
    We review the jury charge for error before determining whether any error was harmful.
    Middleton v. State, 
    125 S.W.3d 450
    , 453 (Tex. Crim. App. 2003). We assess the degree of harm
    based on whether the error was preserved. Id.; Almanza v. State, 
    686 S.W.2d 157
    , 171 (Tex. Crim.
    App. 1985) (op. on reh’g). The verdict form is considered part of the charge and is included in our
    analysis. Jennings v. State, 
    302 S.W.3d 306
    , 307 (Tex. Crim. App. 2010). In determining whether
    charge error exists, we consider the charge as a whole rather than as a series of isolated statements.
    Holley v. State, 
    766 S.W.2d 254
    , 256 (Tex. Crim. App. 1989). If we find error, we apply the
    appropriate harm analysis depending on whether the error was preserved in the trial court. See 
    id. at 311
    (all jury-charge errors are cognizable on appeal, but unobjected-to error is reviewed for
    “egregious harm,” while objected-to error is reviewed for “some harm.”).
    The punishment charge provides as follows:
    You are instructed that the punishment of Indecency with a Child, is confinement
    in the Institutional Division of the Texas Department of Criminal Justice for a
    period of not less than 2 years nor more than 20 years, and the jury in its discretion,
    may, if it chooses, assess a fine in any amount not to exceed $10,000.00, in addition
    to confinement in the penitentiary.
    Therefore, you will assess the punishment, upon said finding of guilt, at any term
    of years not less than 2 years nor more than 20 years; and in addition, if you choose
    to assess a fine in addition to such confinement, you will assess such fine in an
    amount not to exceed $10,000.00.
    The verdict form states that the jury, having found appellant guilty, “unanimously assess
    his punishment at confinement in the Institutional Division of the Texas Department of Criminal
    Justice for ______ (2 to 20) years and a fine of $________ (0 to 10,000).”
    Appellant did not object to the punishment charge at trial. During deliberations, the jury
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    sent a note to the court asking, “Can we allocate months, or only full years?” The trial court wrote
    to the jury that they had “heard all the law and evidence.” The jury wrote “4” in the first blank and
    “0” in the second blank of the verdict form.
    Appellant argues the charge is erroneous because the penal code does not require that that
    punishment be assessed only in terms of years. However, the court of criminal appeals has held
    that a verdict form requiring an answer in a term of years was not erroneous. Mills v. State, 
    483 S.W.2d 264
    , 265–66 (Tex. Crim. App. 1972). In Mills, the punishment charge “correctly stated
    that the punishment for possession of marihuana shall be confinement in the Texas Department of
    Corrections for not less than two years nor more than life.” 
    Id. The verdict
    form in Mills provided
    as follows:
    The Defendant, Joe Mills having been found guilty as charged in the indictment,
    we, the Jury, assess his punishment at confinement in the Department of
    Corrections of the State of Texas for a period of ____ years.
    
    Id. The appellant
    argued that use of the word “years” prevented the jury from considering a
    punishment in terms of years and months, months, or days. 
    Id. The court
    rejected this argument
    and held no error was presented. 
    Id. “The jury
    could have assessed the punishment at any fractional
    part of a year in excess of two years had it so desired.” 
    Id. Here, although
    the application paragraph
    and the verdict form use the word “years,” the abstract portion correctly instructed on the full range
    of punishment applicable to this case. The jury was not precluded from assessing punishment in
    any fractional part of a year not less than two years or more than twenty years if it had so desired.
    Considering the charge as a whole, we conclude the trial court correctly instructed the jury
    with the proper range of punishment and the charge and verdict form are not erroneous. Further,
    any error in the charge did not result in egregious harm because the jury assessed punishment
    within the appropriate range of punishment. See Cartwright v. State, 
    833 S.W.2d 134
    , 136–37
    (Tex. Crim. App. 1992) (no egregious harm where jury assessed fine within the lawful range even
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    though charge erroneously allowed fine in excess of amount allowed by law). We overrule
    appellant’s second issue.
    C. Jury Communications
    In his third issue, appellant argues the trial court violated article 36.27 in responding to the
    jury note discussed in the previous section. Appellant argues the trial court was required to consult
    with the parties on the record about its response. Here, the jury’s note and the trial court’s written
    response are in the record, but there is no record of the consultation with the defense before the
    response was given to the jury.
    Article 36.27 of the Texas Code of Criminal Procedure requires a trial court, in responding
    to a communication from the jury, to “use reasonable diligence to secure the presence of the
    defendant and his counsel” prior to issuing a response to the communication. TEX. CODE CRIM.
    PROC. ANN. art. 36.27. If the trial court “is unable to secure the presence of the defendant and his
    counsel, then [it] shall proceed to answer the same as [it] deems proper.” 
    Id. During their
    deliberations on punishment, the jury sent a note asking, “1) Does the 8
    months already served count toward any sentence duration?; 2) Can we allocate months, or only
    full years?” The trial court’s written response was, “You have heard all the law and evidence.”
    There is no mention of the note or the response in the reporter’s record.
    The State argues that appellant has procedurally defaulted his complaint because the record
    is silent on the procedure followed by the trial court in responding to the note. We agree. As a
    perquisite to presenting a complaint on appeal, the record must show the appellant raised the
    complaint by a timely request, objection, or motion stating the grounds for the ruling desired and
    obtained a ruling from the court. TEX. R. APP. P. 33.1(a). “It is usually the appealing party’s burden
    to present a record showing properly preserved, reversible error.” Word v. State, 
    206 S.W.3d 646
    ,
    651–52 (Tex. Crim. App. 2006). When the record is silent, we presume that the trial court complied
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    with the requirements of article 36.27. 
    Id. at 651.
    The record before us does not show that the trial court failed to notify appellant of the jury
    questions or that appellant objected to the trial court’s response to the jury. We conclude appellant
    procedurally defaulted any claimed violation of article 36.27 and any objection to the trial court’s
    response to the jury questions. 
    Word, 206 S.W.3d at 652
    . We overrule appellant’s third issue.
    D. Bill of Costs
    In his fourth issue, appellant, relying on Salinas v. State, 
    523 S.W.3d 103
    , 110 (Tex. Crim.
    App. 2017), contends a portion of the consolidated fees assessed against him is unconstitutional
    and should be deleted from the judgment.
    Salinas was decided in March 2017 and held that the former version section 133.102(e) of
    the local government code was facially unconstitutional to the extent the funds collected were
    dispersed to the accounts for “abused children’s counseling” and “comprehensive rehabilitation.”
    Id.; see Act of May 29, 2011, 82d Leg., R.S., ch. 1249, § 13(b), sec. 133.102(e)(1), (6), 2011 Tex.
    Gen. Laws 3349, 3353, amended by Act of May 18, 2017, 85th Leg., R.S., ch. 966, § 1, 2017 Tex.
    Gen. Laws 3911, 3911 (effective June 15, 2017) (current version at TEX. LOC. GOV’T CODE
    § 133.102(e)). After Salinas was decided, the Legislature amended section 133.102(e) to remove
    the “abused children’s counseling” and “comprehensive rehabilitation” accounts and reallocate the
    percentages for those accounts to the “fair defense account.” See Act of May 18, 2017, 85th Leg.,
    R.S., ch. 966, § 1, 2017 Tex. Gen. Laws 3911, 3911 (codified at TEX. LOC. GOV’T CODE
    § 133.102(e)). The amendment was effective June 15, 2017.
    Appellant’s court costs were assessed on April 23, 2018, after the effective date of the
    amendment to section 133.102(e). Accordingly, the costs which Salinas held were unconstitutional
    were not assessed against appellant. We overrule appellant’s fourth issue.
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    E. Modification of Judgment
    In his fifth issue, appellant argues the judgment should be modified to reflect that the jury
    assessed punishment rather than the trial court. The State agrees.
    We have the power to modify an incorrect judgment to make the record speak the truth
    when we have the necessary information before us to do so. See TEX. R. APP. P. 43.2(b); Bigley v.
    State, 
    865 S.W.2d 26
    , 27–28 (Tex. Crim. App. 1993); Asberry v. State, 
    813 S.W.2d 526
    , 529–30
    (Tex. App.—Dallas 1991, pet. ref’d).
    The judgment here reflects that the court assessed punishment. However, the record shows
    that the jury, pursuant to appellant’s election, assessed punishment. Accordingly, we sustain
    appellant’s fifth issue.
    CONCLUSION
    We modify the judgment to reflect that the jury assessed punishment. As modified, the trial
    court’s judgment is affirmed.
    /Erin A. Nowell/
    ERIN A. NOWELL
    JUSTICE
    Do Not Publish
    TEX. R. APP. P. 47.2(b)
    180586F.U05
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    Court of Appeals
    Fifth District of Texas at Dallas
    JUDGMENT
    JOSE ANTONIO CERVANTES, Appellant                  On Appeal from the Criminal District Court
    No. 2, Dallas County, Texas
    No. 05-18-00586-CR         V.                      Trial Court Cause No. F17-76189-I.
    Opinion delivered by Justice Nowell.
    THE STATE OF TEXAS, Appellee                       Justices Bridges and Brown participating.
    Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
    as follows:
    The section of the judgment titled “Punishment Assessed by:” is modified to state
    “JURY.”
    As MODIFIED, the judgment is AFFIRMED.
    Judgment entered this 2nd day of August, 2019.
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