Opinion issued April 20, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00837-CR
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REFUGIO RICON HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 263rd District Court
Harris County, Texas
Trial Court Case No. 1386385
MEMORANDUM OPINION
A jury convicted appellant Refugio Ricon Hernandez of the second-degree
felony offense of indecency with a child and assessed punishment at 25 years in
prison. See TEX. PENAL CODE § 21.11(a)(1), (d). Hernandez raises three issues on
appeal. In his first issue, he argues that the trial court lacked jurisdiction because his
indictment was presented by the grand jury of a different district court. In his
remaining issues, Hernandez contends that the trial court erred by admitting a video
of an interview of the complainant and by allowing the State to ask an improper
commitment question during voir dire.
We affirm the judgment of conviction.
Background
Appellant Refugio Ricon Hernandez, also known as “Chon,” attended a party
at the home of his cousin, Natividad. Several other family members and friends also
came to the house for the party. The adults drank beer and alcohol outside the house,
while Natividad’s children remained inside. Eventually, Natividad put his children
to bed, and the adults continued drinking and watching a movie in the garage.
At some point during the early morning, Hernandez made his way into the
house. One of Natividad’s children, G.G., was in her bedroom when Hernandez
entered the house. According to G.G., who was ten years old at the time of the party,
Hernandez came into her bedroom. G.G. was laying down on the top bunk of a bunk
bed watching television while her younger sister slept on the bottom bunk.
Hernandez said that G.G.’s parents had sent him to check on her. She said “okay”
and he left. After he came back into the room several more times to check on her,
G.G. faced the wall with the covers over her eyes. G.G. then felt Hernandez standing
behind her and “touching” her “parts.” G.G. identified her “parts” as the part of her
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body where “urine” comes out of. G.G. eventually moved and Hernandez left the
room.
After Hernandez left her room, G.G. got out of bed and talked to her mom in
the kitchen. G.G. told her mom that “Chon” had touched her private part. G.G.’s
mother then went outside to the garage and told Natividad what G.G. had said to her.
Natividad and a friend began looking for Hernandez. They found him by the garage
and a fight ensued. Hernandez attempted to leave the house in his van, but he could
not escape. Natividad’s wife called the police, but Hernandez escaped from the
house on foot before they arrived.
A grand jury returned an indictment alleging that Hernandez unlawfully
engaged in sexual contact with G.G., a person younger than 17 years of age, by
touching her genitals, or touching her genitals through her clothing, with the intent
to arouse and gratify his sexual desire. The indictment indicated that it was filed in
the 263rd Harris County District Court, but the stamp of the grand jury foreman
suggests that it was the 184th District Court grand jury that returned the indictment.
Hernandez did not challenge the indictment at any time prior to or during trial.
At trial, the State called several witnesses including a police officer who
responded to the 911 call, G.G.’s parents, and a family friend who attended the party.
Each of these witnesses testified to a similar series of events occurring on the night
of the party. G.G. also testified. She described her interaction with Hernandez,
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identified him as the man who touched her, and discussed the places on her body
that he had touched her.
During his cross-examination of G.G., Hernandez’s counsel mentioned a
video of an interview that investigators had conducted of G.G. several weeks after
the alleged touching. Through his questioning, Hernandez’s counsel suggested that
G.G.’s testimony at trial differed from the statement she gave during the interview.
In response to this suggestion, the State sought to admit the video of the interview.
The trial court admitted the video of the interview over Hernandez’s objection.
A jury convicted Hernandez of indecency with a child and assessed
punishment at 25 years in prison. Hernandez appealed the conviction.
Analysis
On appeal, Hernandez raises three issues. In his first issue, he argues that the
trial court lacked jurisdiction to convict him because of errors relating to the
presentment of the indictment by the grand jury. In his second and third issues, he
contends that the trial court erred by admitting a video of an interview of G.G. and
by allowing the State to ask an improper commitment question during voir dire.
I. Trial court jurisdiction
Hernandez argues that the trial court—the 263rd District Court of Harris
County—lacked jurisdiction because the grand jury of a different court—the 184th
District Court of Harris County—presented the indictment. Hernandez relies upon
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the trial court’s docket sheet and the grand jury foreman’s stamp on the indictment
to support his argument that it was the grand jury of the 184th District Court that
presented the indictment. He contends that a grand jury serves a particular court, not
a particular county, and therefore, when the 184th District Court’s grand jury
presented the indictment, it did not vest jurisdiction over the case in the 263rd
District Court, and this is a jurisdictional defect that can be raised for the first time
on appeal. This argument was recently considered and rejected by this court’s
opinion in Davis v. State, No. 01-16-00079-CR, 2017 WL 1281426 (Tex. App. [1st
Dist.] Apr. 6, 2017, no pet. h.). “Any procedural challenge to the transfer of a case
within a county is . . . determined and resolved by proper application of local rule
promulgated pursuant to constitutional and statutory authority; it is not a
jurisdictional defect.” Davis, 2017 WL 1281426, at *4 (citing TEX. GOV’T CODE §
74.094; Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.—Dallas 2005, pet.
ref’d)).
In this case, there was no objection regarding the indictment. Hernandez’s
failure to challenge the indictment or the proceedings in the 263rd District Court
prior to trial constitutes a waiver of his right to challenge any procedural irregularity.
See, e.g., Mosley v. State, 354 S.W.2d 391, 393–94 (Tex. Crim. App. 1962); Davis,
2017 WL 1281426, at *4; Hernandez v. State, 327 S.W.3d 200, 204–05 (Tex.
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App.—San Antonio 2010, pet. ref’d); Tamez v. State, 27 S.W.3d 668, 670–71 (Tex.
App.—Waco 2000, pet. ref’d). Accordingly, we overrule his first issue.
II. Admissibility of evidence
In his second issue, Hernandez contends that the trial court erred by admitting
into evidence a video of an interview of G.G. in which she described the indecent
touching. Investigators conducted the interview prior to trial. On appeal, Hernandez
contends that the video was inadmissible hearsay and that the exception to the
hearsay rule provided in Code of Criminal Procedure article 38.071 did not apply
because G.G. testified at trial.
“A party may claim error in a ruling to admit or exclude evidence only if the
error affects a substantial right of the party . . . .” TEX. R. EVID. 103(a). A trial court’s
decision to admit or exclude evidence is reviewed under an abuse-of-discretion
standard. Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006); Smith v.
State, 340 S.W.3d 41, 53–54 (Tex. App.—Houston [1st Dist.] 2011, no pet.). A trial
court abuses its discretion when it acts arbitrarily and unreasonably, without
reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372,
380 (Tex. Crim. App. 1990); Smith, 340 S.W.3d at 53–54. A trial court’s evidentiary
ruling will not be reversed unless that ruling falls outside the zone of reasonable
disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002).
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Hearsay is an out-of-court statement offered to prove the truth of the matter
asserted. See TEX. R. EVID. 801. Hearsay statements are not admissible unless they
fall under a recognized exception to the hearsay rule. See TEX. R. EVID. 802.
Texas Code of Criminal Procedure article 38.071 provides an exception to the
hearsay rule by allowing for the admission of a child’s videotaped statement. See
Bays v. State, 396 S.W.3d 580, 589–90 (Tex. Crim. App. 2013). Several
requirements must be met in order for such a statement to be admissible, including
that the child must be unavailable to testify at trial. See id.; see also TEX. CODE CRIM.
PROC. art. 38.071.
The rule of optional completeness is also an exception to the hearsay rule.
Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). “If a party introduces
part of an act, declaration, conversation writing, or recorded statement, an adverse
party may inquire into any other part on the same subject. An adverse party may also
introduce any other act, declaration, conversation writing, or recorded statement that
is necessary to explain or allow the trier of fact to fully understand the part offered
by the opponent.” TEX. R. EVID. 107. The purpose of the rule is to reduce the
possibility of the jury receiving a false impression from hearing only a part of some
act, conversation, or writing, and it “permits the introduction of otherwise
inadmissible evidence when that evidence is necessary to fully and fairly explain a
matter opened up by the adverse party.” Walters, 247 S.W.3d at 217–18. When
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defense counsel pursues a subject that ordinarily would be outside the realm of
proper comment by the prosecutor, the defendant opens the door and creates a right
of reply for the State. See Tovar v. State, 221 S.W.3d 185, 190 (Tex. App.—Houston
[1st Dist.] 2006, no pet.). A party who opens a door to an issue “cannot complain
when the opposing party desires to go into the details of that subject.” Sherman v.
State, 20 S.W.3d 96, 101 (Tex. App.—Texarkana 2000, no pet.).
More specifically, under Rule 107 the State is entitled to admission of a
complainant’s videotaped statement when (1) the defense attorney asks questions
concerning some of the complainant’s statements on the videotape, (2) the defense
attorney’s questions leave the possibility of the jury receiving a false impression
from hearing only a part of the conversation, with statements taken out of context,
and (3) the videotape is necessary for the conversation to be fully understood. See
Tovar, 221 S.W.3d at 190–91; see also Credille v. State, 925 S.W.2d 112, 116–17
(Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). Nevertheless, Rule 107 does not
permit the introduction of a videotape when (1) it is unnecessary to show the context
of the statement, such as the absence of a statement by the complainant rather than
the existence of any directly contradictory statement, and (2) the admission of the
videotape likely would create confusion, such as through references to extraneous-
offense evidence. Sauceda v. State, 129 S.W.3d 116, 121–24 (Tex. Crim. App.
2004).
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In this case, the State called G.G. to testify. During her direct examination,
she described her interaction with Hernandez on the night of the alleged assault. She
testified that Hernandez came or “peeked his head” into her room five or six times
during the night. She also identified the places on her body where he had touched
her, which included her vagina.
During his cross-examination, Hernandez’s counsel questioned G.G.
regarding statements that she made during a videotaped interview that took place
after the assault. He asked her if she had told the interviewer how many times
Hernandez had come into her room that night and suggested that she had not told the
interviewer that he came in six times. On the video, G.G. told the interviewer that
Hernandez came in “three times or five times or four times.” Further, during his
cross-examination, defense counsel suggested that G.G. had not told the interviewer
that Hernandez had touched her vagina on the night of the assault. After referencing
the video, he specifically asked G.G., “Do you remember when you displayed to the
lady at the assessment center what the man supposedly did to you? Didn’t you, in
fact, just touch your upper thigh and you never touched your private parts?” In the
recorded interview, G.G. said that Hernandez touched the “side of her middle part.”
She said that part of her body is used “to pee.” To indicate what part of her body
Hernandez touched, G.G. rubbed her inner thigh near her vagina.
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During the State’s redirect examination of G.G., it sought to offer the video
of the interview to rebut the suggestion that her testimony was inconsistent with the
statements she made to the interviewer. Hernandez’s counsel objected to the
admission of the video contending that it was statutorily inadmissible. The State
argued that the video was admissible because Hernandez’s counsel had opened the
door and it was necessary because he had asked questions to mislead the jury.
Hernandez is correct that the videotaped statement was not admissible under
Article 38.071 because G.G. was available to testify. See Bays, 396 S.W.3d at 589–
90. But we conclude that the videotaped statement was admissible under Rule 107
because defense counsel opened the door to the video by questioning G.G. regarding
some of the statements she made on the videotape. By his questions asking whether
G.G. told the interviewer how many times Hernandez came into the room, defense
counsel suggested to the jury that she had not indicated to the interviewer that he
came in multiple times. On the video, however, G.G. told the interviewer that
Hernandez came into her room at least three times during the night. Further, through
his questions regarding the places on her body that G.G. indicated to the interviewer
Hernandez had touched, defense counsel suggested that her testimony differed from
the videotaped statement. On the video, however, G.G. clearly stated Hernandez
touched her “private part,” and her indication of the location on her body he touched
was consistent with this statement. Thus, the trial court reasonably could have
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determined that the questions asked by Hernandez’s counsel could have left a false
impression and misled the jury regarding the statements G.G. made during the
interview. Therefore, the trial court reasonably could have determined that the
videotape was necessary for the conversation between the interviewer and G.G. to
be properly understood. See TEX. R. EVID. 107; Tovar, 221 S.W.3d at 192. We hold
the trial court did not abuse its discretion by admitting G.G.’s videotaped statement.
We overrule Hernandez’s second issue.
III. Voir dire question
In his third issue, Hernandez argues that the trial court erred by allowing the
State to ask an improper commitment question during voir dire. We review a trial
court’s ruling on an improper commitment question during jury selection for an
abuse of discretion. Barajas v. State, 93 S.W.3d 36, 38 (Tex. Crim. App. 2002);
Bravo v. State, 471 S.W.3d 860, 871 (Tex. App.—Houston [1st Dist.] 2015, pet.
ref’d).
A defendant has a constitutional right to a trial by an impartial jury. Sanchez
v. State, 165 S.W.3d 707, 712 (Tex. Crim. App. 2005). To safeguard this right,
counsel are forbidden to ask prospective jurors questions that solicit an improper
commitment to return a verdict based on some specific set of facts before they have
heard the evidence. Id. The Court of Criminal Appeals has stated a three-part test for
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ascertaining whether a question seeks an improper commitment. Bravo, 471 S.W.3d
at 872.
First, we assess whether the question sought a commitment. Id. A question
does so if “‘one or more of the possible answers is that the prospective juror would
resolve or refrain from resolving an issue in the case on the basis of one or more
facts contained in the question.’” Id. (quoting Standefer v. State, 59 S.W.3d 177, 180
(Tex. Crim. App. 2001).
Second, if the question sought a commitment, then we must assess whether
the commitment sought was an improper one, for not all commitments are improper.
Id. A commitment question is proper if one of the possible answers would give rise
to a valid challenge for cause. Id. If “the law requires a certain type of commitment
from jurors, the attorneys may ask the prospective jurors whether they can follow
the law in that regard.” Id. But if a commitment question could not give rise to a
challenge for cause, then the commitment question is an improper one. Id.
Finally, even if the question may have given rise to a valid challenge for cause,
we must ascertain whether the question included “only those facts necessary to test
whether a prospective juror is challengeable for cause.” Id. Facts beyond those
necessary to sustain a challenge for cause may render an otherwise proper
commitment question an improper one. Id.
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In this appeal, Hernandez challenges the following question as an improper
commitment question by the prosecutor:
Here’s a scaled question . . . . The question is: If the child says
they were sexually abused, then they probably were. And No. 1
is strongly disagree. No. 2 is disagree. No. 3 is that agree. No. 4
is strongly agree.
Hernandez’s counsel objected to this question, and the trial court overruled the
objection. The State then asked the question again and received scaled answers from
each of the potential jurors.
Our court has considered an issue similar to the one Hernandez raises. In
McDonald v. State, the prosecutor was permitted, over objection, to pose the
following question to the jury panel: “Do you feel that children likely will make up
sexual abuse or unlikely?” 186 S.W.3d 86, 90 (Tex. App.—Houston [1st Dist.] 2005,
no pet.). The court rejected the contention that this was a commitment question,
reasoning that the question sought “to discover whether any of the prospective jurors
harbor a pre-existing bias or prejudice concerning the likelihood of children in
general fabricating sexual abuse allegations” and did not ask them commit to any
particular set of facts. Id.
The question the State posed to the jury panel in this case is similar to the one
asked in McDonald. The State’s question sought to discover any biases or prejudices
rather than to commit prospective jurors to resolve or refrain from resolving any
issue in the case on the basis of facts contained in the question. The question
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therefore was not a commitment question. See Bravo, 471 S.W.3d at 872–74.
Accordingly, we hold that the trial court did not abuse its discretion by permitting
the question. We overrule Hernandez’s third issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Massengale, Brown, and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).
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