Tommy Coronado v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-12-00504-CR
________________________

TOMMY CORONADO, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 22nd District Court
Deaf Smith County, Texas
Trial Court No. CR-07L-208; Honorable Roland Saul, Presiding

May 2, 2014

OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

Appellant, Tommy Coronado, was convicted by a jury of indecency with a child1

enhanced, and sentenced to sixty years confinement and a $5,000 fine. Appellant

asserts the trial court erred in permitting the complainant to use a support person while

1
See TEX. PENAL CODE ANN. § 21.11(a)(1), (c) (West 2011). An offense under § 21.11(a)(1) is a
second degree felony. Id. at (d).
testifying at trial pursuant to Texas Code of Criminal Procedure article 38.0742 because

(1) article 38.074 is inherently prejudicial and the State failed to meet certain statutory

requirements for use of a support person; (2) the State’s evidence was insufficient to

establish that a support person’s presence was unlikely to prejudice the jury; and (3) the

trial court’s order improperly charged Appellant $211 as “Basic Court Costs.” We

reform and affirm.

BACKGROUND

In December 2007, an indictment issued alleging that, on or about August 1,

2007, Appellant intentionally or knowingly caused his finger to penetrate the sexual

organ of a child younger than 14 years of age and not Appellant’s spouse (Count 1),

and he intentionally or knowingly engaged in sexual contact with the child by touching

her genitals with intent to arouse or gratify his sexual desires (Count 2). The indictment

further contained an enhancement paragraph alleging Appellant was convicted of two

separate offenses of robbery in April 1985.3

In November 2012, the State informed the trial court of its intention to call the

complainant as a witness4 and requested she be permitted to have a support person

2
Article 38.074 permits a trial court to allow a child to have a toy, blanket, or similar item in his or
her possession while testifying or allow a support person to be present in close proximity to the child
during the child’s testimony if certain conditions are met. See TEX. CODE CRIM. PROC. ANN. art. 38.074(2),
(3) (West Supp. 2013). A “support person” is defined as “any person whose presence would contribute to
the welfare and well-being of the child.” Id. at 38.074(1).
3
If it is shown on the trial of a felony of the second degree that the defendant has previously been
convicted of a felony other than a state jail felony punishable under section 12.35(a), on conviction the
defendant shall be punished for a felony of the first degree. TEX. PENAL CODE ANN. § 12.42(b) (West
Supp. 2013). Robbery, the offense alleged in the enhancement paragraph, is a felony of the second
degree. Id. at § 29.02(b).
4
The complainant was three years old at the time of the alleged offenses and nine years old at
the time of trial.
2
present during her testimony. Appellant’s counsel voiced concerns the support person

would prompt the child and his right to confrontation would be diminished.

During the hearing, the complainant’s mother testified her daughter is Appellant’s

great niece. She also testified that, since the crime, her daughter suffered from anxiety,

bedwetting, fear of being alone, trust issues and attention deficit. In the months

immediately preceding the trial setting, the complainant had returned to counseling due

to increased anxiety. The complainant’s mother further opined that her daughter would

not remember all the details of the alleged offenses or testify reliably without a support

person because she would be consumed with fear and unable to focus on any

examination. She recommended the child’s aunt, her sister-in-law, be present during

her daughter’s testimony. At that time her sister-in-law had not been listed as a witness

by either side.

On cross-examination, the mother testified her daughter sees her aunt weekly

and feels safe in her presence. She testified her daughter was in the third grade and a

good student with difficulty in reading. She further testified her daughter was able to

read a paper before her seventeen member class and perform a one-line part in a

Halloween play before an audience of 75 to 100 persons, including adults.

At the conclusion of cross-examination, Appellant’s counsel objected to the

presence of a support person because, in his view, the child appeared normal and no

more anxious than anyone else would be testifying in court. He also asserted a support

person would interfere with his right to confront or cross-examine the child. The State

countered that a support person should be allowed because of the child’s young age

3
and her history of counseling. The State also asserted no prejudice existed because

the aunt was not designated as a witness by either side and she had been thoroughly

admonished concerning the requirements of section 3(c).5 The trial court found, by a

preponderance of evidence, the support person’s presence would assist the child to

reliably testify and was unlikely to prejudice the trier of fact in evaluating the child’s

testimony.

In its opening statement at trial, the State informed the jury the child would testify

accompanied by her aunt. The State indicated her aunt would be there “to just sit with

her, not to testify, but just to sit with her for moral support.” Prior to the child’s

testimony, her counselor testified that, based upon their recent sessions, “it is going to

be very difficult for [the child] to testify in court in defendant’s presence” and she would

be “very fearful.” When the child spoke of her abuse, her counselor indicated she

displayed anxiety, embarrassment, shame and tearfulness. Afterwards, the child

testified without objection. Appellant’s attorney did not ask for any instruction regarding

the support person’s presence.

At the trial’s conclusion, the jury found Appellant not guilty of aggravated sexual

assault as alleged in Count one of the indictment, but guilty of indecency with a child as

alleged in Count two. The jury also found the allegations contained in the enhancement

paragraph of the indictment to be true. The jury then sentenced Appellant to sixty years

confinement and a $5,000 fine. In addition to reciting the offense as a first degree

felony and a finding of “True” as to the enhancement paragraph contained in the

5
Section 3(c) of article 38.074 provides that a support person who is present during a child’s
testimony may not (1) obscure the child from the view of the defendant or the trier of fact; (2) provide the
child with any answer to any question asked the child; or (3) assist or influence the child’s testimony. See
TEX. CODE CRIM. PROC. ANN. art. 38.074, § 3(c)(1)-(3) (West Supp. 2013).
4
indictment, the trial court’s Judgment of Conviction contains the following notation:

“Finding on 2nd Enhancement/Habitual Paragraph: TRUE.” The judgment further

ordered Appellant to pay $736 as “Basic Court Costs.” The underlying District Court

Criminal Court Costs-Fees-Fine-Restitution Worksheet contained in the record indicated

the $736 consisted of $211 in court costs, $25 time payment fee, $100 child abuse

prevention fee, $250 DNA fee, $20 jury fee and $130 in peace officer fees. This appeal

followed.

DISCUSSION

Appellant’s first two issues concern the trial court’s order permitting the child to

have a support person present during her testimony. Appellant’s third issue asks

whether the trial court properly charged Appellant $211 in “Basic Court Costs.”

ISSUES ONE AND TWO

Appellant asserts the procedure established by the Texas Legislature for a trial

court’s approval of a support person pursuant to article 38.074 is inherently prejudicial.

Because Appellant failed to raise this objection to the statutory procedure in the trial

court, he did not preserve error for review. See Clark v. State, 365, 365 S.W.3d 333,

339-40 (Tex. Crim. App. 2012) (holding that because defense counsel failed to alert the

trial court that he was requesting relief based on a violation of defendant’s constitutional

rights, due process argument was not preserved for appellate review); Anderson v.

State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009) (holding that due process right to

present a defense is subject to forfeiture if not properly asserted in the trial court).

5
 To preserve a complaint for review, a party must have presented a specific and

timely request, motion, or objection to the trial court and obtained an adverse ruling.

TEX. R. APP. P. 33.1(a); Pena v. State, 353 S.W.3d 797, 807 (Tex. Crim. App. 2011).

Appellant’s objections were that the support person might prompt the child’s testimony

or diminish his right to confrontation of a witness. He further complained that a support

person was unnecessary because evidence showed the child was no more anxious

than any other witness in court. Because Appellant’s issue on appeal does not comport

with his objections at trial, that issue is not preserved for review. Clark, 365 S.W.3d at

339.

Appellant also asserts the State failed to make an “adequate showing of

necessity” to justify the presence of a support person. Article 38.074 requires the State

show by a preponderance of evidence that (1) the child cannot reliably testify without

the item or support person’s presence, and (2) granting the State’s request is not likely

to prejudice the trier of fact in evaluating the child’s testimony. See TEX. CODE CRIM.

PROC. ANN. art. 38.074, § 3 (b)(1), (2) (West Supp. 2013).

At the hearing, the child’s mother testified her daughter was suffering from

increased anxiety due to the upcoming trial and, as a result, was attending counseling.

In her opinion, her daughter would be consumed with fear and unable to focus on any

examination at trial in the absence of a support person. At trial, her daughter’s

counselor also opined that, based upon recent counseling sessions, she believed it

would be very difficult for the child to testify due to Appellant’s presence in court

because she would be very fearful. Her counselor also indicated she continued to

display anxiety, embarrassment, shame and tearfulness more than six years after the

6
abuse. Based on this record, we find there was sufficient evidence showing the child

could not reliably testify without the presence of a support person.

The State’s evidence was also sufficient to show that a support person’s

presence was unlikely to prejudice the jury. At the hearing, the State proffered the

child’s aunt as someone the child trusted, who had not been designated as a witness by

either side, and who had received the admonishments applicable to support persons.

See TEX. CODE CRIM. PROC. ANN. art. 38.074, § 3(c)(1)-(3) (West Supp. 2013).

Appellant presented no evidence the jury would likely be prejudiced by the presence of

the child’s aunt as a support person. Further, at trial, the trial court’s instructions to the

jury emphasized that the trier of fact must base their verdict on the evidence, i.e,

“testimony of witnesses and evidence presented in the form of physical objects or

documents called exhibits.” We find there was a preponderance of evidence supporting

the trial court’s determination that the presence of a support person was not likely to

prejudice the trier of fact in evaluating the child’s testimony. Accordingly, we cannot say

the trial court erred in permitting the child to testify at trial in the presence of a support

person. Appellant’s first two issues are overruled.

ISSUE THREE

By his third issue, Appellant contends the judgment charging him with $736 as

“Court Costs” actually over-charged him the sum of $78 because the Bill of Costs

reflects $211 for “basic court costs” when the statutory “consolidated fee on conviction”

of a felony is $133. See TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1) (West Supp.

2013). In making this argument the Appellant fails to account for the following statutorily

7
authorized fees—totaling $78, which are “in addition to” the consolidated fee on

conviction: $40 district court filing fee; see TEX. CODE CRIM. PROC. ANN. art. 102.005(a)

(West 2006), $25 records management fee; id. at 102.005(f)(1)-(2), $5 courthouse

security fee; see TEX. CODE CRIM. PROC. ANN. art. 102.017(a) (West Supp. 2013), $4

juror reimbursement fee; id. at 102.0045(a), and $4 judicial support fee; see TEX. LOC.

GOV’T CODE ANN. § 133.105(a) (West 2008).

When a specific amount of court costs is written in the judgment, an appellate

court should affirm the judgment as to court costs “if there is a [statutorily authorized]

basis for the cost.” Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014).

Because we conclude a statutorily authorized basis for the court costs assessed exists,

Appellant’s third issue is overruled.

REFORMATION OF JUDGMENT

This Court has the power to modify the judgment of the court below to make the

record speak the truth when we have the necessary information to do so. TEX. R. APP.

P. 43.2(b). Ramirez v. State, 336 S.W.3d 846, 852 (Tex. App.—Amarillo 2011, pet.

ref'd) (citing Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993)). Appellate

courts have the power to reform whatever the trial court could have corrected by a

judgment nunc pro tunc where the evidence necessary to correct the judgment appears

in the record. Ashberry v. State, 813 S.W.2d 526, 529 (Tex.App.—Dallas 1991, pet.

ref'd). The power to reform a judgment is "not dependent upon the request of any party,

nor does it turn on the question of whether a party has or has not objected in the trial

court." Id. at 529-30.

8
 As stated above, the Judgment of Conviction recites the degree of offense as a

first degree felony. Indecency with a child is a second degree felony. See n.1. The

judgment further reflects a plea of “True” and a finding of “True” to a “2nd

Enhancement/Habitual Paragraph.” While the indictment in this case does allege two

separate offenses as “enhancements,” there is but one “enhancement” for purposes of

punishment as a repeat offender. The offenses alleged are not subsequent offenses for

purposes of enhancement of punishment as contemplated by subsection (d) of section

12.42 because Appellant was convicted of both offenses on the same day.6

Accordingly, we reform the judgment to reflect the correct degree of offense as a

second degree felony and to delete any reference to a plea or finding as to a second

enhancement.

CONCLUSION

As reformed, the trial court’s judgment is affirmed.

Patrick A. Pirtle
Justice

Publish.

6
If it is shown on the trial of a felony offense, other than a state jail felony punishable under
section 12.35(a), that the defendant has been convicted of two felony offenses, and the second previous
felony conviction is for an offense that occurred subsequent to the first previous conviction became final,
on conviction the defendant shall be punished by imprisonment for life, or for any term of not more than
ninety-nine or less than 25 years. TEX. PENAL CODE ANN. § 12.42(d) (West Supp. 2013).
9