ACCEPTED
13-14-00684-CR
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
3/31/2015 8:02:05 AM
DORIAN RAMIREZ
CLERK
NO. 13-14-00684-CR
IN THE COURT OF APPEALS FILED IN
13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
CORPUSOFCHRISTI/EDINBURG, TEXAS
TEXAS 3/31/2015 8:02:05 AM
AT CORPUS CHRISTI DORIAN E. RAMIREZ
Clerk
EUGENIO VALDEZ,
Appellant,
v.
THE STATE OF TEXAS,
Appellee.
On Appeal from the
th
377 Judicial District Court
Of Victoria County, Texas
Cause No. 14-04-27914-D
FIRST AMENDED BRIEF FOR THE
STATE OF TEXAS
STEPHEN B. TYLER
Criminal District Attorney
Victoria County, Texas
BRENDAN WYATT GUY
Assistant Criminal District Attorney
Victoria County, Texas
205 N. Bridge St. Ste. 301,
Victoria, Texas 77901-6576
bguy@vctx.org
(361) 575-0468
(361) 570-1041 (fax)
State Bar No. 24034895
Attorneys for the State of Texas
ORAL ARGUMENT NOT REQUESTED
TABLE OF CONTENTS
PAGE (S)
TABLE OF CONTENTS ......................................................................... ii
INDEX OF AUTHORITIES ...............................................................iii-iv
STATEMENT OF THE FACTS .......................................................... 1-2
SUMMARY OF ARGUMENT ............................................................. 2-3
ARGUMENT .......................................................................................... 3-8
I. The State did not make any reference to Appellant
not testifying in its opening argument .................................. 3-5
II. Appellant has waived any claim of error based on
the prosecution’s opening argument by failing to
object at trial ............................................................................ 5-8
PRAYER .................................................................................................... 9
SIGNATURE ............................................................................................. 9
CERTIFICATE OF COMPLIANCE ................................................... 10
CERTIFICATE OF SERVICE ............................................................. 11
First Amended Brief of Appellee ii
Victoria County Criminal District Attorney
No. 13-14-00684-CR
INDEX OF AUTHORITIES
United States Supreme Court Cases
Cockrell v. Texas,
520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed. 2d 548 (1997) ........................ 6
Texas Cases
Cockrell v. State, 933 S.W. 2d 73 (Tex. Crim. App. 1996) ..................... 6
Cruz v. State, 225 S.W. 3d 546(Tex. Crim. App. 2007) .......................... 4
Garcia v. State, 887 S.W. 2d 862 (Tex. Crim. App. 1994) ...................... 6
Garza v. State, 126 S.W. 3d 79 (Tex. Crim. App. 2004) ......................... 7
Hammock v. State, 46 S.W. 3d 889 (Tex. Crim. App. 2001) .................. 6
Hollins v. State, 805 S.W. 2d 475 (Tex. Crim. App. 1991) ..................... 7
Moore v. State, 999 S.W. 2d 385 (Tex. Crim. App. 1999) ...................... 6
Nowlin v. State, 507 S.W. 2d 534 (Tex. Crim. App. 1974) ..................... 4
Taylor v. State, 947 S.W. 2d 698
(Tex. App.-Ft. Worth 1997, pet. ref’d)................................................... 4
Trevino v. State, 174 S.W. 3d 925
(Tex. App.-Corpus Christi 2005, pet. ref’d) ........................................... 8
Texas Statutes
TEX. CODE CRIM. PROC. art. 36.01 (West 2007) ............................. 4
First Amended Brief of Appellee iii
Victoria County Criminal District Attorney
No. 13-14-00684-CR
Texas Rules
TEX. R. APP. 9.4..................................................................................... 10
TEX. R. APP. 33.1..................................................................................... 6
First Amended Brief of Appellee iv
Victoria County Criminal District Attorney
No. 13-14-00684-CR
NO. 13-14-00684-CR
IN THE COURT OF APPEALS
FOR THE THIRTEEN DISTRICT OF TEXAS
AT CORPUS CHRISTI
EUGENIO VALDEZ………..….…………………………………..Appelant
v.
THE STATE OF TEXAS,…..……………………………………...Appellee
* * * * *
STATE’S FIRST AMENDED BRIEF ON THE MERITS
* * * * *
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, THE STATE OF TEXAS, by and through her Criminal
District Attorney, Stephen B. Tyler, and as Appellee in the above numbered
and entitled cause, and files this the Appellee’s brief showing:
STATEMENT OF THE FACTS
Appellant was indicted for the offense of aggravated assault on April
17, 2014. [RR-I-6]. Appellant’s case was called for trial on November 3,
2014. [RR-III-1].
During the State’s opening argument, the prosecutor stated that only
two of the three individuals involved in the incident at issue in the trial could
remember what happened. [RR-IV-12]. This statement did not draw any
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
1
objection from the defense. [RR-IV-12]. Further, on in the State’s opening
argument, the prosecutor described how the evidence would show that the
defendant had told the police he did not remember what happened. [RR-IV-
14]. This statement did not draw any objection from the defense. Id.
Further, on in the opening argument the prosecutor then reiterated that the
defendant could not articulate what happened on the night of the offense.
[RR-IV-15]. This statement also did not draw any objection from the
defense. Id.
During the case in chief, the State called Deputy Isaac Ramirez of the
Victoria County Sheriff’s Office to testify. [RR-IV-112]. Deputy Ramirez
described making contact with the Appellant on the night of the offense.
[RR-IV-117-119]. Deputy Ramirez also described questioning the
Appellant about the events of that night, and the Appellant continuously
telling him that he could not remember. [RR-IV-120].
The Appellant was found guilty of the charged offense. [RR-IV-203].
The Appellant was sentenced to 99 years imprisonment. [RR-V-67].
SUMMARY OF THE ARGUMENT
The State did not make any reference to Appellant not testifying in its
opening argument. The statement that Appellant now objects to was neither
a direct nor implied comment on the Appellant not testifying. Rather the
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
2
statement was permissible opening statement as it was reference evidence
that the State would present during its trial.
Furthermore, Appellant did not make any objection to the State’s
opening argument at trial. Accordingly, Appellant has waived any claim of
error related to that argument. Nor is there any reason to change existing
Texas law which requires a timely, specific objection in order to preserve
appeal on claims of improper prosecutorial comments. The existing Texas
law on that subject is a sensible standard that best balances the interest of
efficient judicial administration with fairness to all parties and thus there is
no reason to change that law.
ARGUMENT
I. The State did not make any reference to Appellant not testifying
in its opening argument.
Appellant’s sole claim of error is to allege that the State made a
reference to his not testifying in the State’s opening argument. This claim
cannot be supported by the record. [RR-IV-12-16].
A prosecutorial comment amounts to an impermissible comment on a
defendant’s failure to testify only if, when viewed from the jury’s
standpoint, the comment is manifestly intended to be, or is of such character
that a typical jury would naturally and necessarily take it to be a comment on
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
3
the defendant’s failure to testify. Cruz v. State, 225 S.W. 3d 546, 548 (Tex.
Crim. App. 2007). Moreover, it is not enough that the objected to language
might be construed as an implied or indirect allusion to the defendant not
testifying. See Nowlin v. State, 507 S.W. 2d 534, 536 (Tex. Crim. App.
1974). The objected to remark must either have necessarily referred to the
defendant not testifying or at least called the jury’s attention to the absence
of evidence that only the testimony from the defendant could have provided.
Id.
In the present case the State’s opening argument made no reference to
the defendant not testifying. [RR-II-12]. Nor did the objected to statement
make reference to evidence that only the defendant could provide. Id.
Instead the statement clearly referred to relevant evidence that was going to
be provided by a State witness, Deputy Isaac Ramirez, who questioned the
Appellant on the night of the offense and was told by the Appellant that he
did not remember what happened. [RR-IV-14, 120]. Describing evidence
that the State intends to offer at trial is perfectly proper opening argument.
The State has a statutory right in opening argument to inform the jury of the
facts which are expected to be proved by the State in support of its case. See
TEX. CODE CRIM. PRO. art. 36.01(a)(3); Taylor v. State, 947 S.W. 2d
698, 706 (Tex. App.-Ft. Worth 1997, pet. ref’d). Nor is it improper for the
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
4
State to make the jury aware of what the Appellant told police on the night
of the offense. Such evidence is obviously relevant and has nothing to do
with whether the Appellant will ultimately decide to testify at trial. Nor can
it even be logically inferred that just because a defendant told police that he
did not remember what happened that that means he will not be testifying.
(Even without memory of the actual night in question, a defendant could still
be called upon to testify about other potentially relevant factors such as the
defendant’s own character or the character of or potential sources of bias in
the State’s witnesses, so informing the jury that the Appellant did not
remember what happened does not even indirectly suggest that the Appellant
would not be testifying.)
The State’s opening argument did nothing but inform the jury of
relevant facts that the State intended to prove (and in fact did later admit) at
trial. Thus the argument was proper opening argument and there was no
error.
II. Appellant has waived any claim of error based on the
prosecution’s opening argument by failing to object at trial.
Furthermore, even if the State’s opening argument was deemed to
include some kind of reference to Appellant electing not to testify, the
Appellant would still not be entitled to any relief because he failed to make
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
5
an objection at trial on this issue and thus has waived any claim for appellate
review.
In order to preserve error for appellate review, the complaining party
must present a timely and specific objection to the trial court, and obtain a
ruling. TEX. R. APP. P. 33.1(a). This applies even to a claim that the
prosecution impermissibly commented on a defendant’s decision not to
testify. See Cockrell v. State, 933 S.W. 2d 73, 89 (Tex. Crim. App.
1996)(holding that defendant waived appellate review of his claim that the
prosecutor impermissibly commented on defendant’s failure to testify by not
objecting at trial), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed. 2d
548 (1997); Garcia v. State, 887 S.W. 2d 862, 877 (Tex. Crim. App.
1994)(holding that no error was preserved when the defendant failed to
object to the State commenting on the defendant not testifying), abrogated
in part on other grounds by Hammock v. State, 46 S.W. 3d 889, 892-893
(Tex. Crim. App. 2001). This is because in all but the most blatant
instances, an instruction to disregard from the trial court will cure the
damage from an improper comment on a defendant not testifying. See
Moore v. State, 999 S.W. 2d 385, 405 (Tex. Crim. App. 1999). As such,
since the defendant can cure any error from an improper prosecutorial
comment by seeking relief from the trial court, it is the defendant’s
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
6
responsibility to seek that relief at trial. If they fail to do so they waive any
claim of error on that issue for appeal.
In the present case the Appellant did not make any sort of objection to
the prosecutor’s statement in opening argument about only two of the three
people involved in the incident remembering what happened. [RR-IV-12].
Therefore Appellant has waived any claim of error on this issue.
Nor is there any compelling reason to change long standing Texas law
on this issue. The requirement for timely, specific objections exists for very
sensible reasons. The best way to insure an efficient, fair trial process for all
parties is to resolve any errors at the lowest level of court possible. Timely
objections are critical for this because they give the trial court the
opportunity to cure any error that might have occurred. See Hollins v. State,
805 S.W. 2d 475, 376 (Tex. Crim. App. 1991). Additionally, raising
objections at the trial level also gives the opposing party that opportunity to
remove the objection themselves or perhaps find an alternate, non-
objectionable way of introducing the evidence they hope to present. See
Garza v. State, 126 S.W. 3d 79, 82 (Tex. Crim. App. 2004). Therefore it is
only logical to require objections to be made at the trial level in order to
preserve issues for appellate review. Nor is the process for preserving
potential error unduly burdensome. All a party has to do is: 1) let the trial
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
7
court know what they want, 2) explain why they think they are entitled to
that relief, and 3) explain what they want and why they deserve it with
sufficient clarity for the judge to understand them at a time when the judge is
in a proper position to do something about the issue. See Trevino v. State,
174 S.W. 3d 925, 927 (Tex. App.-Corpus Christi 2005, pet. ref’d). As such
existing Texas law on this principle is sound and should be maintained,
which means that Appellant has waived any error on this claim.
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
8
PRAYER
WHEREFORE, PREMISES CONSIDERED, the State prays that this
Honorable Court affirm the judgment of the trial court.
.
Respectfully submitted,
STEPHEN B. TYLER
CRIMINAL DISTRICT ATTORNEY
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
ATTORNEYS FOR THE APPELLEE,
THE STATE OF TEXAS
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
9
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,
Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,
Texas, certify that the number of words in Appellee’s First Amended Brief
submitted on March 31, 2015, excluding those matters listed in Rule 9.4(i)(1)
is 1,583.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
10
CERTIFICATE OF SERVICE
I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria
County, Texas, certify that a copy of the foregoing first amended brief has
been served on W. A. (Bill) White, P.O. Box 7422, Victoria, Texas, 77903,
Attorney for the Appellant, Eugenio Valdez, by depositing same in the
United States Mail, postage prepaid on the day of March 31, 2015.
/s/ Brendan W. Guy
Brendan W. Guy
Assistant Criminal District Attorney
SBN 24034895
205 North Bridge Street, Suite 301
Victoria, Texas 77902
E-mail: bguy@vctx.org
Telephone: (361) 575-0468
Facsimile: (361) 576-4139
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
11