Christopher Joel Vizcaino v. State ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00800-CR
Christopher Joel Vizcaino, Appellant
v.
The State of Texas, Appellee
FROM THE 207TH DISTRICT COURT OF COMAL COUNTY
NO. CR2017-935, THE HONORABLE DWIGHT E. PESCHEL, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Christopher Joel Vizcaino of three counts of
aggravated sexual assault and assessed punishment at 21 years’ imprisonment for each count.
See Tex. Penal Code § 22.021. The district court rendered judgment on the verdicts. In three
issues on appeal, Vizcaino asserts that the district court erred in not granting a mistrial due to
juror misconduct, that the evidence is insufficient to support the jury’s finding that he used a
knife during the offense, and that the State asked a defense witness improper questions during its
cross-examination of the witness. We will affirm the district court’s judgments of conviction.
BACKGROUND
The State alleged that on April 22, 2016, Vizcaino sexually assaulted the victim
and used a deadly weapon, either his hands or a knife, during the commission of the assault. At
trial, the victim testified that on the night of the assault, she went to a local bar with her friends
and was introduced to Clint Horne. The victim also met Vizcaino and “maybe exchanged a few
words” with him but “didn’t really talk to him the rest of the night.” At around midnight, after
the victim’s friends had left the bar, the victim was talking to Horne in the parking lot when
Vizcaino drove up to them in his truck and invited them to his cabin. The victim and Horne,
driving together in the victim’s truck, followed Vizcaino to his place.
When they arrived at Vizcaino’s cabin, Vizcaino went inside first, followed by the
victim, who turned around to see if Horne was “coming in behind” her. At that point, the victim
testified, Vizcaino grabbed her hair and her head, pulled her into the kitchen, pushed her head
toward his crotch, pulled out his penis from his pants, and forced his penis inside her mouth.
After that, the victim looked for Horne but could not find him. Vizcaino told the victim, “Who
the fuck cares where [Horne] is,” and proceeded to grab her arm, pull her into another room, and
throw her “violently onto the couch.” Then Vizcaino “started smacking [her] and punching [her]
back and forth and back and forth.” The victim told Vizcaino to stop but he continued to assault
her, slapping and punching her face repeatedly and choking her by applying pressure to her neck
using both of his hands, which made it difficult for the victim to breathe.
Vizcaino then ripped apart the victim’s clothing, including her leggings at the
crotch area, and forced his penis inside her vagina, inside her anus, and between her breasts. The
victim further testified that during the assault, she felt something else inside her:
There was a pain I had never felt before. It wasn’t like a normal penis going into
your vagina or whatever. It was like something sharp. I didn’t know if it was a
bottle or like his fist or what it was, but it was like just an overwhelming, like,
cramping pain and sharp pain. I don’t really know how to describe it.
2
The victim was unable to identify the object because “it was dark” and she “really couldn’t see,”
but whatever the object was, it made her bleed profusely. She explained:
I happened to look, and he had [blood] all on his arm—like, on his hand and on
his arm. And that’s what made me believe that it was his, like, whole arm or fist
that he had put in there, because it was covered in blood. And so I at that point
said, Oh, my God. What did do you? And he went and grabbed a rag, I think, or
something. And that’s when he, like, was wiping off his—trying to, like, wipe off
his arm and wipe off my—like, all the blood, I guess, from my private.
In an attempt to escape, the victim told Vizcaino that she needed to use the
restroom. But Vizcaino “wouldn’t stop,” and the victim kept trying to push him off her. She
recounted, “[A]fter being violently hit multiple times, . . . it was hard to get up. . . . I just kept
trying to push him off, and he wouldn’t get off of me. And then finally he did, and I was able to
run for the front door and get out of there.” The victim ran to her truck and found Horne “asleep
inside the truck.”
The victim awakened Horne, told him what had happened, and asked him why he
had failed to protect her. She then drove Horne to an RV park where he was staying at the time,
dropped him off there, and returned to her home. When she got out of her truck, she fell to the
ground. She texted a friend and asked for help, but her friend did not respond. The victim
eventually made it to her bathroom and sat on the toilet, continuing to bleed and “trying to . . .
keep my head up and not pass out.” Later that morning, her friend came over to her house in
response to the text. The victim met her outside and “immediately collapsed into the front yard.”
The victim’s friend testified that the victim appeared to be holding “a big clump
of blood” and looked like she was “on her period or like giving birth or something.” The friend
3
observed “a lot of blood” outside the victim’s house and wondered if the victim had been “cut or
shot”:
[I]t was clots, like clots of blood, like—like clots, like, hanging off the side of the
door, like, on the—in the truck, like, on the ground or, like, it was enough you
could just pick up and put in bowls. Like, I’ve never seen it before in my life.
The friend called 911, and an investigation into the assault began. The victim was
examined that afternoon by a sexual assault nurse examiner (SANE). The SANE testified that
the victim had redness, bruising, and swelling on her face and neck. The victim also had nine
lacerations on her genitals, some of which were still bleeding at the time of the exam. Although
the SANE could not identify the object that caused the lacerations, another SANE who assisted
with the examination testified that they could have been caused by a sharp object.
At the victim’s house, investigators discovered a large amount of blood inside and
outside the residence and inside the victim’s truck. One of the investigators, crime scene
technician Carlos Alvarado, testified, “Usually on a scene like this, when there is that much
blood, it’s been my experience that there was a sharp object that was used where one would
bleed profusely, not—usually a gunshot doesn’t even bleed as much as what I saw there.”
Investigators next searched Vizcaino’s residence and found blood in several locations, including
on his couch, which Alvarado testified was “soaked” with blood. Investigators also discovered a
switchblade-style knife with an open blade that “was covered in blood, especially around the
tip.” DNA testing revealed that the blood on the knife belonged to the victim.
After hearing the evidence, the jury found Vizcaino guilty of aggravated sexual
assault as charged. This appeal followed.
4
DISCUSSION
Sufficiency
We first address Vizcaino’s second issue, in which he asserts that the evidence is
insufficient to prove that he used a knife during the assault. To convict Vizcaino of aggravated
sexual assault as charged in the indictment, the State was required to prove that Vizcaino used a
deadly weapon, specifically a knife or his hands, during the offense.1 See Tex. Penal Code
§ 22.021(a)(2)(A)(iv) (person commits aggravated sexual assault if, among other requirements,
person “uses or exhibits a deadly weapon in the course of the same criminal episode”); see also
id. § 1.07(a)(17)(B) (defining deadly weapon as “anything that in the manner of its use or
intended use is capable of causing death or serious bodily injury”). According to Vizcaino,
“There is no evidence to support a finding that a knife was used or exhibited in the commission
of a sexual assault, making the finding of the use or exhibition of a knife irrational.”
“Evidence is sufficient to support a criminal conviction if a rational jury could
find each essential element of the offense beyond a reasonable doubt.” Stahmann v. State, 602
S.W.3d 573, 577 (Tex. Crim. App. 2020) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
“We view the evidence in the light most favorable to the verdict and consider all of the admitted
evidence, regardless of whether it was properly admitted.” Id. “The jury is the sole judge of
credibility and weight to be attached to the testimony of the witnesses.” Id. “Juries can draw
1
Although Vizcaino focuses his argument on the knife, the State alleged in the
alternative that Vizcaino used his hands as a deadly weapon, based on evidence tending to show
that Vizcaino had choked the victim. Because we conclude that the evidence is sufficient to
support the finding that a knife was used as a deadly weapon, we need not address the
sufficiency of the evidence regarding whether Vizcaino used his hands as a deadly weapon. See
Herrin v. State, 125 S.W.3d 436, 441 (Tex. Crim. App. 2002); Reser v. State, No. 03-15-00469-
CR, 2016 WL 6408006, at *2 n.5 (Tex. App.—Austin Oct. 25, 2016, pet. ref’d) (mem. op., not
designated for publication).
5
reasonable inferences from the evidence so long as each inference is supported by the evidence
produced at trial.” Id. A reviewing court is not permitted to “reevaluate the weight and
credibility of the evidence in the record and thereby substitute [its] own judgment for that of the
factfinder.” Braughton v. State, 569 S.W.3d 592, 608 (Tex. Crim. App. 2018). Instead, a
reviewing court is to “adhere to the Jackson standard and 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.” Hooper v. State, 214 S.W.3d 9, 16–17
(Tex. Crim. App. 2007). “When the record supports conflicting inferences, we presume that the
jury resolved the conflicts in favor of the verdict and defer to that determination.” Merritt v.
State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012).
To support his claim that there was no evidence that he used a knife, Vizcaino
points to evidence in the record tending to show that the object used during the assault was not
identified, including the victim’s testimony that she did not see the object, Alvarado’s testimony
on cross-examination denying that he had reported that the victim had been “stabbed in the
vagina,” and the SANE’s testimony that she did not know what object was used to penetrate the
victim. However, the jury could have reasonably inferred from other evidence in the record that
the object was a knife, including:
• The victim testified that she felt a “sharp pain” and “something sharp” inside her
during the assault.
• The object caused massive bleeding that made the victim’s friend wonder if the
victim had been “cut or shot.”
• The SANE testified that the victim had nine lacerations on her genitals. Another
SANE who had assisted with the examination testified that the victim’s injuries
could have been caused by a sharp object.
6
• Crime scene technician Alvarado testified that there was a large amount of blood
inside and outside the victim’s residence and that “when there is that much blood,
it’s been my experience that there was a sharp object that was used where one
would bleed profusely.” Later in his testimony, he added, “[S]omeone that bleeds
out that much is consistent with somebody being cut, from my experience.”
• Alvarado further testified that he had seen a similar quantity of blood “in a
stabbing” and that blood from a stabbing can have a “clumpy” appearance, similar
to the blood that was found at the victim’s residence.
• Alvarado testified that at Vizcaino’s residence, investigators found a switchblade
knife that “was covered in blood, especially around the tip.” That blood,
according to the DNA evidence presented, belonged to the victim. When the
State asked Alvarado if there was “significance in the fact that the blood was on
both sides of the blade and not just a single side,” Alvarado testified, “To me,
that’s—from my experience, that would indicate that it was used for piercing
something, to be able to obtain the blood on both sides.”
Viewing the combined and cumulative force of the above evidence in the light most favorable to
the verdict, we conclude that the evidence is sufficient to prove that Vizcaino used a knife during
the assault. See Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. 1982) (concluding that
even though victim did not see knife that was used during assault, nature of victim’s injuries and
other evidence was sufficient to support deadly weapon finding); Webber v. State, 757 S.W.2d
51, 54 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d) (concluding that “victim need not see
the weapon” used during offense to support deadly weapon finding); see also Thurman v. State,
No. 01-02-00030-CR, 2002 WL 31430557, at *2–3 (Tex. App.—Houston [1st Dist.] Oct. 31,
2002, no pet.) (not designated for publication) (concluding that even though State was unable to
produce evidence “conclusively linking” recovered knives to victim’s injuries, victim’s
testimony regarding pain that he “felt” during assault and nature and extent of victim’s injuries
supported finding that knife was used during assault).
We overrule Vizcaino’s second issue.
7
Mistrial
In his first issue, Vizcaino claims that the district court abused its discretion in
denying his motion for mistrial due to juror misconduct. After Vizcaino was found guilty but
before the hearing on punishment, defense counsel informed the district court that the night
before the hearing, he had received a text message telling him that Vizcaino’s wife and potential
witness for the State, Jessica Thomas, was seen “hugging a juror.”2 The same day that defense
counsel received the text message, the court bailiff had received a phone call from an anonymous
caller, later identified as Vizcaino’s uncle, claiming that the juror knew the defendant’s wife, the
defendant, and the victim.3 The bailiff explained to the court:
[He] proceeded to tell me that the Defendant’s wife, Jessica Thomas, had an
ongoing custody dispute with the Defendant during the time of the sexual assault.
He went on to say that the Defendant’s wife knows the victim [] and the
Defendant’s wife is lifelong friends with a juror on our panel. He went on to say
that the juror on our panel also knows [the victim] and the Defendant, and the
Defendant has done work for her at her home on her air conditioning unit.
The bailiff asked the caller “specifically where [he got] this information,” and the caller told him
that he heard it from Vizcaino’s mother.
Both Thomas and the juror were questioned to determine the truth of these
allegations. Thomas testified that she knew the juror and the juror’s “whole family,” had grown
up with the juror, and was “really good friends with her sister.” Thomas did not know whether
the juror knew either the victim or Vizcaino, but she knew that Vizcaino had done “AC work for
[the juror’s] dad.” When asked about her contact with the juror, which had occurred two days
2
The State had subpoenaed Thomas as a possible witness, but she did not testify at trial.
3
The bailiff’s phone had caller ID, and he testified that the number belonged to a
“Ronald Lamb.” Thomas later testified that Lamb is Vizcaino’s uncle.
8
earlier, while the guilt / innocence phase of trial was still ongoing, Thomas explained, “I didn’t
contact [her]. I didn’t even realize it was her until we were outside and we caught eyes and gave
a side hug. And that was it.” She added, “It was simple as, I thought that was you, and then left
it at that because I wasn’t trying to get in trouble, and I’m sure she wasn’t either.” Thomas
testified that she and the juror had no discussions or conversations about the case. Thomas also
testified that it was “possible” that the juror knew of the custody dispute between her and
Vizcaino because Thomas and the juror were “friends on Facebook.”
On cross-examination by the State, Thomas testified that she had not posted any
details of the sexual-assault case on Facebook but had exchanged private messages with her
friends about the case on Facebook Messenger. She did not know whether she had exchanged
any such messages with the juror because “this case has been going on for four years.”
Regarding the victim, Thomas testified that she “looks familiar” but she did not know if she
knew her or not. She explained, “I mean, it’s a small town, so I can’t say. But I’ve never met
her, I’ve never spoken to her.” When asked if she had “any type of a friendship or close
relationship with [the victim],” Thomas testified, “No.”
Before Thomas was excused, the district court asked her “what exactly did [the
juror] say to [her]” during their encounter. Thomas answered,
[W]e walked out of the coffee shop, and she was walking this way, and we smiled
at each other. And that’s when we were like, okay, we do—we do know each
other. And she gave me a hug and she said, I thought I recognized you. I said,
It’s nice to see you. And that’s it.
9
The district court next questioned the juror. When asked if she knew Thomas, the
juror testified, “My family grew up in, kind of like, the same neighborhood, but I don’t ‘know’
know her personally.” She elaborated,
I didn’t grow up with her, but we grew up in the same neighborhood. I think, if
I’m not mistaken, I have a couple years on her. I didn’t even go to school with
her, I don’t believe. . . . I have an older sister, and she has an older sister, that
could have went to school together, but I didn’t. . . . I have multiple sisters, and
she does as well, as far as I know.
The court also asked the juror, “So do you have any kind of social interaction with Ms. Thomas,
other than growing up in the same neighborhood?” The juror answered, “We’re Facebook
friends, yes. Do I speak to her? No. Have I spoke to her? No.” The court then asked the juror
about her and Thomas hugging. The juror explained, “When we were at the coffee shop, and me
and [another juror] were going in, she grabbed me when I walked out and hugged me around my
neck, yes.” The juror added that during the encounter, she “didn’t say anything” to Thomas.
The juror also testified that she did not know either the victim or Vizcaino and that, before the
trial, she had “never seen that man.” The court asked the juror if her “relationship, such as it is,
with you and Ms. Thomas” could affect her “ability to be fair and impartial in this case.” The
juror answered, “Absolutely not.”
After that, defense counsel moved for a mistrial on the following basis: “The
State’s subpoenaed witness hugged and had an encounter, as brief as it may be, with a juror
during the guilt/innocence phase of the trial. And for those reasons we would move for a
mistrial.” The district court denied the motion, telling defense counsel, “No, that’s not going to
happen.”
10
“We review a trial court’s denial of a mistrial for an abuse of discretion.”
Balderas v. State, 517 S.W.3d 756, 783 (Tex. Crim. App. 2016). “Determinations of historical
fact and assessment of witness credibility and believability are left almost entirely to the
discretion of the trial judge, and where there is conflicting evidence there is no abuse of
discretion if the motion is overruled.” Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App.
2000). “We review the evidence in the light most favorable to the trial court’s ruling and
consider only those arguments before the court at the time of the ruling.” Turner v. State, 570
S.W.3d 250, 268 (Tex. Crim. App. 2018). “The trial court’s ruling must be upheld if it was
within the zone of reasonable disagreement.” Id.“A mistrial is an appropriate remedy in extreme circumstances for a narrow class
of highly prejudicial and incurable errors.” Id. “Whether an error requires a mistrial must be
determined by the particular facts of the case.” Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim.
App. 2009). To warrant a mistrial based on juror misconduct, “the movant must establish not
only that jury misconduct occurred, but also that it was material and probably caused injury.”
Ryser v. State, 453 S.W.3d 17, 39 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (citing
Bogue v. State, 204 S.W.3d 828, 829 (Tex. App.—Texarkana 2006, pet. ref’d)); see also Decker
v. State, 717 S.W.2d 903, 907 (Tex. Crim. App. 1986) (op. on reh’g) (concluding that
information juror withheld during voir dire, regarding his acquaintance with complaining
witness, was not material and thus did not entitle defendant to mistrial); Lopez v. State, 261
S.W.3d 103, 107 (Tex. App.—San Antonio 2008, pet. ref’d) (“When the withheld information is
not material and the record does not show the appellant has been deprived of an impartial jury or
denied a fair trial, the trial court’s denial of a motion for mistrial is not error.”). “To determine
materiality, we evaluate whether the withheld information would likely reveal the juror harbored
11
a bias or prejudice to such a degree that the juror should have been excused from jury service.”
Sypert v. State, 196 S.W.3d 896, 900 (Tex. App.—Texarkana 2006, pet. ref’d).
The State argues as an initial matter that Vizcaino’s objection at trial does not
correspond with his complaint on appeal. We agree. At trial, Vizcaino moved for a mistrial on
the basis that there was improper communication during trial between a juror and a potential
witness. Specifically, he argued that “the State’s subpoenaed witness hugged and had an
encounter, as brief as it may be, with a juror during the guilt/innocence phase of the trial.” On
appeal, Vizcaino argues that prior to trial, the juror knew Vizcaino, Vizcaino’s wife, and the
victim and withheld this information during voir dire. Because Vizcaino’s complaint on appeal
differs from his objection at trial, he has failed to preserve error on this issue. See Tex. R. App.
P. 33.1(a)(1); Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (citing Wilson v.
State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002)); see also Bueno v. State, No. 05-18-00432-
CR, 2018 WL 3387367, at *2 (Tex. App.—Dallas July 12, 2018, no pet.) (mem. op., not
designated for publication) (concluding that appellant failed to preserve error when motion for
mistrial was based on two jurors discussing case outside presence of other jurors and before
receiving all evidence, but complaint on appeal was that two jurors displayed bias or partiality
against defendant).
Even if Vizcaino had preserved error, we could not conclude on this record that
the district court abused its discretion in denying the motion for mistrial on either the ground
asserted at trial or the ground urged on appeal. First, regarding the contact at the coffee shop
between Thomas and the juror, “when jurors converse with an unauthorized person about a case,
injury to the defendant is presumed and a new trial may be warranted.” Barnett v. State, 420
S.W.3d 188, 193 (Tex. App.—Amarillo 2013, no pet.) (citing Quinn v. State, 958 S.W.2d 395,
12
401 (Tex. Crim. App. 1997)). “If the presumption of harm arises, the State has the burden to
rebut the presumption by showing no injury or prejudice to the accused.” Klapesky v. State, 256
S.W.3d 442, 452 (Tex. App.—Austin 2008, pet. ref’d). “However, the defendant has the initial
burden to show that a conversation about the case on trial occurred between a juror and an
unauthorized person,” and “[t]he defendant’s burden is not satisfied if there is no showing what a
reported conversation was about.” Id. (emphasis added).
Here, both Thomas and the juror testified that their contact at the coffee shop was
brief and did not involve any discussion about the case. Thomas testified, “I didn’t contact [the
juror]. I didn’t even realize it was her until we were outside and we caught eyes and gave a side
hug. And that was it.” She added, “It was simple as, I thought that was you, and then left it at
that because I wasn’t trying to get in trouble, and I’m sure she wasn’t either.” When the district
court asked Thomas what the juror said to her, Thomas testified, “[W]e walked out of the coffee
shop, and she was walking this way, and we smiled at each other. And that’s when we were like,
okay, we do—we do know each other.” She continued, “And she gave me a hug and she said, I
thought I recognized you. I said, ‘It’s nice to see you.’ And that’s it.” The juror testified
similarly regarding their encounter and hug, although she claimed that she “didn’t say anything”
to Thomas. Thus, the evidence shows that Thomas and the juror either acknowledged that they
knew each other or merely hugged and said nothing at all. Either way, the record supports a
finding by the district court that they had no conversation regarding the case. Accordingly, the
district court would not have abused its discretion in denying the motion for mistrial on that
ground. See Chambliss v. State, 647 S.W.2d 257, 263–66 (Tex. Crim. App. 1983) (no error in
denying mistrial when juror approached victim’s sister, shook her hand, introduced himself, and
asked for her address; record did not show that juror “in any way discussed appellant’s case, or
13
that [victim’s sister] did”); see also Ortiz v. State, No. 04-05-00524-CR, 2006 WL 1233029, at
*2 (Tex. App.—San Antonio May 10, 2006, no pet.) (not designated for publication) (no error in
denying mistrial when juror approached victim’s mother, hugged her, and said, “my condolences
for your loss”; concluding that “no discussion over the case took place between the juror and the
victim’s mother” and that, even if it had, limited extent of discussion “was not prejudicial to the
accused”).
We reach the same conclusion regarding the juror’s alleged withholding of
information during voir dire. The Court of Criminal Appeals has “long insisted that counsel be
diligent in eliciting pertinent information from prospective jurors during voir dire in an effort to
uncover potential prejudice or bias.” Gonzales v. State, 3 S.W.3d 915, 917 (Tex. Crim. App.
1999). In other words, “defense counsel has an obligation to ask questions calculated to bring
out that information which might be said to indicate a juror’s inability to be impartial, truthful,
and the like.” Jones v. State, 596 S.W.2d 134, 137 (Tex. Crim. App. 1980), overruled on other
grounds, Sneed v. State, 670 S.W.2d 262, 266 (Tex. Crim. App. 1984). “Counsel must ask
specific questions, not rely on broad ones, to satisfy this obligation.” Gonzales, 3 S.W.3d at 917.
“Unless defense counsel asks such questions . . . the purportedly material information which a
juror fails to disclose is not really ‘withheld’ so as to constitute misconduct which would warrant
a reversal.” Jones, 596 S.W.2d at 137. A mistrial is required only when the juror withholds
material information in response to a question from the parties or the court. See Franklin v.
State, 138 S.W.3d 351, 353–57 (Tex. Crim. App. 2004).
Here, during the hearing on the motion for mistrial, the district court asked
defense counsel whether he had posed “a question to the panel about whether they knew Jessica
14
Thomas.” Defense counsel acknowledged that he did not, and the record confirms this.4 Thus,
the district court would not have abused its discretion in finding that the juror did not “withhold”
information regarding her relationship with Thomas so as to require a mistrial. See Jones, 596
S.W.2d at 136–37 (no error in denying mistrial where defense counsel failed to ask juror follow-
up questions related to her past employment as jail guard that might show bias against
defendant); see also Armstrong v. State, 897 S.W.2d 361, 365 (Tex. Crim. App. 1995) (no error
in denying mistrial where counsel did not ask question that would uncover juror’s friendship
with prosecutor).
Moreover, even if the juror had withheld information regarding her relationship
with Thomas, it would not be outside the zone of reasonable disagreement for the district court to
conclude that such information was not material. Thomas and the juror acknowledged that they
were “Facebook friends,” though their testimony differed as to the extent of their friendship.
Although Thomas testified that she knew the juror and the juror’s “whole family,” had grown up
with the juror, and was “really good friends with her sister,” the juror testified that she did not
“‘know’ know her personally” and “didn’t grow up with [Thomas], but we grew up in the same
neighborhood.” The juror also testified that she had “a couple years on” Thomas and that she
“didn’t even go to school with her.” Further, the district court asked the juror, “So do you have
any kind of social interaction with Ms. Thomas, other than growing up in the same
neighborhood?” The juror answered, “We’re Facebook friends, yes. Do I speak to her? No.
Have I spoke to her? No.” The district court was entitled to resolve the conflicting testimony in
favor of the juror’s account and conclude that her acquaintance with Thomas, even if it had been
4
The record reflects that during voir dire, defense counsel asked the panel if they knew
Clint Horne, the victim, the victim’s friend, the owner of and a waitress at the bar where the
victim met Vizcaino, and “any members of the Comal County Sheriff’s Office.”
15
withheld during voir dire, was not information that would likely reveal the juror harbored a bias
or prejudice to such a degree that the juror should have been excused from jury service. See
Franklin v. State, 12 S.W.3d 473, 478 (Tex. Crim. App. 2000) (“[M]ere familiarity with a
witness is not necessarily material information.”); Decker, 717 S.W.2d at 906–07 (concluding
that even though juror and complaining witness were co-workers who knew each other, there
was no showing that their relationship had any potential for bias or prejudice on part of juror);
see also Anderson v. State, 633 S.W.2d 851, 853 (Tex. Crim. App. 1982) (concluding that
although juror’s acquaintance with State’s witnesses “may be the source of an existing bias,”
“‘the mere fact that a juror knows, or is a neighbor, or an intimate acquaintance of, and on
friendly relations with, one of the parties to a suit, is not sufficient basis for disqualification’”
(quoting Allbright v. Smith, 5 S.W.2d 970 (Tex. Comm. App. 1928))).
Finally, regarding Vizcaino’s claim that the juror knew both the defendant and the
victim, the juror denied knowing either one of them and testified that, before the trial, she had
“never seen” Vizcaino. The district court was entitled to believe the juror’s testimony and
disbelieve the hearsay claims to the contrary that Vizcaino’s family members had relayed to
defense counsel via text message and to the bailiff via an anonymous phone call. On this record,
we cannot conclude that the district court abused its discretion in denying the motion for mistrial.
See Uranga v. State, 330 S.W.3d 301, 306–07 (Tex. Crim. App. 2010).
We overrule Vizcaino’s first issue.
Questioning of defense witness
In his third issue, Vizcaino asserts that the State asked improper questions of
defense witness Clint Horne, the person who had accompanied the victim to Vizcaino’s cabin.
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On direct examination, Horne testified that he, Vizcaino, and the victim had entered Vizcaino’s
cabin together. When they were inside, Vizcaino “pulled out his [penis] and [the victim]
voluntarily went down to suck it.” This made Horne uncomfortable, so he left the cabin and
returned to the victim’s truck, where he fell asleep. Approximately one hour later, the victim
returned to the truck, woke Horne, and asked him, “Why did you leave me in there? He beat me
up. Why did you leave me in there?” Horne testified that this confused him because he “didn’t
see any blood” on the victim, “she didn’t seem beat up,” and her clothes were not torn or ripped.
On cross-examination, the State questioned Horne regarding his criminal history,
including his probationary status at the time of his testimony. The following questions were
asked and answered without any objection from defense counsel:
Q. And, Mr. Horne, to be fair, you are currently on a form of felony
probation, right?
A. Yes.
Q. It’s called deferred adjudication, correct?
A. Yes.
Q. What offense are you on probation for?
A. Assault.
Q. Would it be continuous violence against a family member?
A. Yes.
Q. And you had had some prior misdemeanors in your past, correct?
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A. Yes.
Q. But this was your first felony offense?
A. Right.
Q. And at the time of this incident, you were actually on bond for this felony,
correct?
A. Yes.
Q. And being on bond is not quite as bad as being on probation, right? But
it’s still kind of a problem if you get in trouble while you’re on bond,
right?
A. Yes.
Q. If you get in trouble with the police while you’re on bond, you’re going to
get locked up again, correct?
A. Yes.
Q. And, obviously, once you’re on any type of a probation, if someone were
to think that you did something wrong or that you violated the law, that
could be a big problem for you, right?
A. Yes.
....
Q. And, Mr. Horne, just so that we’re not accused of hiding anything from
the jury, the deferred adjudication that you were placed on, I was actually
the prosecutor who placed you on that deferred adjudication, correct?
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A. Yes.
....
Q. And you understand that your probation, in the event that it is revoked, is
not going to be affected in any way by your testimony, correct?
A. Correct.
Q. But you have been subsequently arrested, right?
A. Yes.
Q. As recently as July—end of July of this year, correct?
A. Yes.
Q. What do you think would happen if your probation were to be revoked
because of that arrest in July, and at the time the Judge were to assess your
punishment for your felony offense the Judge believed that you had left a
woman to be sexually assaulted in a cabin? What do you think would
happen?
A. Well, that’s not the story, so I’d hope you wouldn’t think that way.
Q. Do you think your punishment would be more or less than what it would
be otherwise?
A. I would hope it wouldn’t change it.
Q. Well, you’d agree with me that—
A. I didn’t leave somebody to get sexually assaulted in a cabin.
Q. You would agree with me that if a judge or the person deciding your
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punishment, if they believed that that’s what actually happened, it could
greatly affect your punishment, correct?
A. Sure.
....
Q. And I understand that this offense cannot be used to violate your deferred
adjudication, but you do have a recent arrest and charge for unlawful use
of a criminal instrument, which could be the basis—
At that point, defense counsel asked to approach the bench and questioned
whether the prosecutor was “threatening” the witness. The prosecutor responded, “No, Judge,
but the point is he does have a new law violation, and it could be used to violate his probation,
and in that event anything—.” The district court interjected,
Well, you can do that without telling us what the offense is. . . . I’m going crazy
up here about all this testimony. But, I mean, the cat is so much out of the bag,
but do it without talking about [the offense]. . . . Or just don’t do it at all, which is
probably the better practice at this point. God. Okay. So what will you allow
them to do, [defense counsel]?
Defense counsel replied, “I don’t even really understand the line of questioning. I’ll say
improper impeachment is an objection.” The district court remarked, “Oh, yeah. But that was—
that cat—that happened so long ago.” Defense counsel explained, “I just wanted to approach
because it’s coming across, I know it’s probably not the intent, but it’s coming across as him
being threatened for his testimony.” The prosecutor responded, “No. It just goes to his motive
or bias with his testimony.” The district court concluded that “it is such a mess right now
because there weren’t any objections” and instructed the parties to “[c]lean it up.” The
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prosecutor then continued her line of questioning, without any further objection from defense
counsel:
Q. Mr. Horne, it’s your understanding that, after being placed on community
supervision in September of 2017, any new law violation could result in
that probation being revoked, correct?
A. Yes.
Q. And in the event that your probation gets revoked, you could be assessed
prison time; is that right?
A. Yes.
Q. And there is a range of punishment for this particular offense that you’re
on community supervision for, right?
A. Yes.
Q. Do you recall it’s anywhere from two years in prison up to ten years in
prison, correct?
A. Yes.
Q. You have had an allegation—and to be fair, you are presumed innocent at
this point. But you have had a subsequent arrest for a new law violation,
correct?
A. Yes.
Q. Since you’ve been placed on probation?
A. Yes.
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Q. And if or in the event that your probation is revoked because of that
separate offense, the Judge could consider anything and everything in
determining where in that range of punishment to assess, correct?
A. Yes.
Q. So even though it couldn’t be used to revoke your probation, your possible
involvement in this case, in whatever capacity that fact finder determines
it, could be a factor in determining what your sentence—you ultimately
receive, correct?
A. If that’s what you say, I guess.
The prosecutor then passed the witness, and defense counsel asked Horne no further questions.
The State argues that Vizcaino failed to preserve this issue for review. We agree.
As a prerequisite to presenting a complaint for appellate review, the record must show that the
complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P.
33.1(a)(1). “The requirement of a timely trial-level complaint is satisfied ‘if the party makes the
complaint as soon as the grounds for it become apparent[.]’” Lackey v. State, 364 S.W.3d 837,
843 (Tex. Crim. App. 2012) (quoting Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim.
App. 2006)). An objection to the improper questioning of a witness must be urged at the earliest
opportunity or it is not preserved for appellate review. See Cisneros v. State, 692 S.W.2d 78, 82
(Tex. Crim. App. 1985); Stevens v. State, 671 S.W.2d 517, 521 (Tex. Crim. App. 1984); Bynum
v. State, 731 S.W.2d 661, 664–65 (Tex. App.—Houston [14th Dist.] 1987, no pet.).
Here, by the time that defense counsel had complained of the prosecutor
“threatening” the witness, the prosecutor had already asked and Horne had already answered
several questions relating to his probationary status and the possible impact that Horne’s failing
to prevent the assault could have on his sentence following any proceedings to revoke Horne’s
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probation. Thus, the objection was untimely. See Tex. R. App. P. 33.1(a)(1); Bynum, 731
S.W.2d at 665. Moreover, even after he had objected, defense counsel failed to obtain a running
objection to additional questions by the prosecutor relating to that same subject matter. See
Ethington v. State, 819 S.W.2d 854, 859–60 (Tex. Crim. App. 1991).
Additionally, we review a trial court’s ruling on the admissibility of evidence
under an abuse-of-discretion standard and uphold the trial court’s ruling unless it is outside the
zone of reasonable disagreement. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App.
2018). “Exposing a witness’s motivation to testify for or against the accused or the State is a
proper and important purpose of cross-examination.” Carpenter v. State, 979 S.W.2d 633, 634
(Tex. Crim. App. 1998). “Parties are allowed great latitude to show ‘any fact which would or
might tend to establish ill feeling, bias, motive and animus on the part of the witness.’” Id.(quoting London v. State, 739 S.W.2d 842, 846 (Tex. Crim. App. 1987)). In this case, it would
not have been outside the zone of reasonable disagreement for the district court to conclude that
evidence related to Horne’s probationary status was admissible to show that he had a motive
either to deny that an assault had occurred or to minimize its severity, issues that went directly to
his credibility as a defense witness. Thus, even if Vizcaino had preserved this issue for review,
we could not conclude on this record that the district court abused its discretion in admitting the
evidence.
We overrule Vizcaino’s third issue.
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CONCLUSION
We affirm the district court’s judgments of conviction.
__________________________________________
Gisela D. Triana, Justice
Before Justices Goodwin, Triana, and Smith
Affirmed
Filed: March 31, 2021
Do Not Publish
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