Opinion
NO. 03-18-00236-CR
05-15-2018
Juan Carlos Aguero, Appellant v. The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 277TH JUDICIAL DISTRICT
NO. 02-940-K277 , HONORABLE STACEY MATHEWS, JUDGE PRESIDING MEMORANDUM OPINION
A jury convicted Juan Carlos Aguero of indecency with a child by sexual contact, and the district court sentenced him to twenty years' imprisonment. See Tex. Penal Code § 21.11(a)(1). In two issues on appeal, Aguero contends that the district court erred by "not sustaining" defense counsel's objection to testimony from Aguero's bail bondsman and by overruling defense counsel's objection to the portion of the State's closing argument that Aguero perceived as a comment on his failure to testify. The State contends that Aguero failed to preserve both of his appellate issues for review. We agree and will affirm the judgment of conviction.
BACKGROUND
The facts are summarized from the testimony and exhibits admitted into evidence at trial.
On the first day of trial and before jury selection, Aguero rejected the State's plea-bargain offer. After jury selection, Aguero entered an open plea of guilty to the district court, the court admonished Aguero about his plea and scheduled Aguero's sentencing for the following month. Given Aguero's plea of guilty, the court found that Aguero's $40,000 bond was insufficient and decided to remand him to the sheriff's custody pending a determination of whether Aguero should be released before sentencing, and if so, whether he should have electronic monitoring. After receiving the court's decision to remand him into custody, Aguero withdrew his plea of guilty and elected to proceed to trial.
The next morning, Aguero failed to appear for trial. Outside the jury's presence, Aguero's retained counsel requested a mistrial and asked to withdraw from the case. The district court denied both motions, and trial proceeded in Aguero's absence. Among the witnesses at the two-day trial were the victim, her father, Aguero's ex-girlfriend Erica Ortega, her brother, Aguero's friend Michael Perez, and Aguero's bail bondsman Sylvia Akpaka.
The victim's father testified that his daughter was fifteen at the time of the offense. He stated that his daughter was friends with his co-worker Erica Ortega, who was also Aguero's girlfriend, and that his daughter and Ortega would sometimes "hang out" together. He had known Aguero through Ortega for about one year before the offense. On the night of the offense, he allowed his daughter to sleep over at Ortega's house, where Aguero also lived.
The victim testified that she did not know Aguero well at the time of the offense, and that most of what she knew about him was through Ortega. The victim recalled that on the night of the offense, she planned to spend the night at Ortega and Aguero's house. Beforehand, the victim, Ortega, Ortega's thirteen-year-old brother, and Aguero went to the movies together, then they returned to Ortega and Aguero's house. After Ortega went to bed, her brother and Aguero played video games, and the victim watched them play. The victim testified that Aguero had a couple of beers and that she had one. Sometime later, Aguero asked the victim whether she shaved her bikini line or sexual organ. The victim stated that his question "came out of the blue," was unrelated to anything they had been discussing, and made her feel uncomfortable. A couple of hours later, Aguero went to sleep in a bedroom with Ortega, and Ortega's brother and the victim went to sleep in another bedroom.
The victim testified that as she was falling asleep lying on her stomach, she felt Aguero's hand on her buttocks and then reaching beneath her clothing and attempting to insert his fingers into her sexual organ. She had not heard Aguero enter the room. When she turned and confronted Aguero, he told her, "I'm sorry, I didn't know you were awake," and left. The victim testified that she locked the bedroom door and went back to bed with an extra pair of pants wadded up between her legs, but she was unable to sleep for hours because she was afraid that Aguero would find a way back into the room. Later that morning, she told a friend—who was also Ortega's cousin and co-worker—what Aguero had done, and the friend notified the victim's father and Ortega.
Michael Perez, Aguero's friend and Ortega's cousin, testified that he helped Aguero move on the day after the offense. Perez recalled that Aguero "seemed nervous or whatever, and he just wanted me to take the rap for him at the time." Perez testified that Aguero asked "[i]f I could take the blame, say I touched [the victim]" and "just can you say it was you . . . take the blame." Aguero told Perez that he wanted him to take the blame because he thought Perez was a minor and would not get in trouble for it. Perez acknowledged that Aguero was his good friend and that he initially agreed to "take the rap for him," stating, "At first I told him yeah, and then I told him no later on, two weeks later." Perez denied being at Ortega's house on the night of the offense and denied touching the victim.
Ortega's minor brother similarly testified that Aguero asked him to blame Perez for the offense against the victim, and that "[Aguero] said he would buy me things . . . if I lied for him." Ortega's brother recalled Aguero asking the victim, "Do you shave your shit? . . . Yeah, meaning do you shave your private." He also testified that later that night, he saw Aguero touching the victim between her legs while she was lying down, and when she asked Aguero what he was doing, Aguero told her, "Oh, I thought you were asleep."
After all of the State's fact witnesses testified and while Aguero was still absent from the trial, Sylvia Akpaka testified. She stated that she was a bail bondsman for ABC Bail Bond Services, which was responsible for Aguero's bond in the case. She further testified that Aguero failed to report to her office or to the court on that second day of trial, that none of his alternate contacts could reach him, and that none of them had an excuse for his absence. The last person to see Aguero was his mother, who told Akpaka that Aguero was at her home the previous night when she went to bed about 8:00 p.m. Akpaka testified that she had no idea where Aguero was.
At the conclusion of the trial, with Aguero still absent, the jury found Aguero guilty as charged in the indictment and assessed his punishment. Over twelve years later, Aguero appeared before the district court for sentencing, and the court rendered judgment in accordance with the jury's verdict. This appeal followed.
DISCUSSION
Before addressing the merits of Aguero's appellate issues, we must determine whether he preserved those issues for review. "[I]t is the duty of the appellate courts to ensure that a claim is preserved in the trial court before addressing its merits." Obella v. State, 532 S.W.3d 405, 407 (Tex. Crim. App. 2017) (quoting Wilson v. State, 311 S.W.3d 452, 473 (Tex. Crim. App. 2010)); Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2010) (stating that appellate courts should not address merits of issue that has not been preserved for appeal). To preserve error for appellate review, a party must make a timely and specific objection at the earliest possible opportunity and obtain an adverse ruling from the trial court, and the complaint on appeal must correspond to the objection made at trial. Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); see Tex. R. App. P. 33.1(a).
Aguero failed to preserve error as to relevance of witness's testimony
In his first issue, Aguero contends that the district court erred by "not sustaining defense counsel's objection to Ms. Akpaka's testimony on the basis of relevance." To preserve a complaint for review, a party must have presented a timely objection to the trial court with sufficient specificity to make the court aware of the complaint unless the grounds were apparent from the context of the party's objection. Tex. R. App. P. 33.1(a); Mohammed v. State, No. 14-04-00284-CR, 2005 Tex. App. LEXIS 7344, at *7-9 (Tex. App.—Houston [14th Dist.] Sept. 1, 2005, pet. ref'd) (mem. op., not designated for publication) (concluding that defense counsel's objection, "I don't think this witness can testify" was vague at best, did not adequately inform trial court of defendant's complaint, and failed to preserve error).
Here, the record reflects that defense counsel never raised an objection to the relevance of Akpaka's testimony, but rather made only a non-specific objection "to any evidence from this witness." The context of a bench discussion preceding counsel's objection shows that the parties agreed to approach before putting on evidence of flight or reasons for Aguero's absence:
THE COURT: Okay. It's a couple of minutes after 10:00 o'clock. [Defense counsel], have you heard from your client?
[Defense counsel]: Judge, I have heard nothing.
THE COURT: Okay. He's not present in the courtroom. I have already forfeited his bond. There's evidently a number of people looking for him at this point. I find that he has voluntarily absented himself. Both sides ready for the jury?
. . . .
[Defense counsel]: Obviously I would ask they approach prior to using any evidence about any reason why the defendant may not be here, without approaching the Court first and having a hearing outside the presence of the jury.
THE COURT: Well, obviously, I'm not going to say anything. That would be—
[Prosecutor]: And, Judge, I think we are entitled to put on evidence of flight, and we can address that.
[Defense counsel]: I just ask that we approach first.
THE COURT: We had a discussion about that. I think everybody understands what the rules regarding that are, but do approach before you get into it.
. . . .
[Prosecutor]: May we approach?
THE COURT: You may.
(At the bench, on the record.)
[Prosecutor]: Our next witness that we plan to call is Sylvia Akpaka with the bond company, and we were to approach before.
[Defense counsel]: Judge, I'm going to object to any evidence from this witness and ask for a mistrial and ask to withdraw on this case.
THE COURT: I have already ruled on both of those.
(End of bench discussion.)
Further, this complaint was not preserved because defense counsel never obtained a ruling on his objection "to any evidence from this witness." See Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014) (stating that complaining party must obtain adverse ruling from trial court to preserve error); see also Tex. R. App. P. 33.1(a). The district court seems to refer only to its rulings denying the mistrial and motion to withdraw, which were made on the morning of the second day of trial when Aguero failed to appear. We note that later during trial, when the State asked Akpaka whether she knew if Aguero spent the night at his mother's house, defense counsel objected as to relevance, but he did not obtain any ruling from the court on that objection.
Defense counsel's non-specific objection "to any evidence from this witness" said nothing to the district court about the reason for that objection, much less that counsel was challenging the relevance of Akpaka's anticipated testimony. See Tex. R. App. P. 33.1(a) (requiring party to make specific objection); Mohammed, 2005 Tex. App. LEXIS 7344, at *7-9. Further, Aguero's complaint on appeal—that the district court erred by not sustaining defense counsel's objection to the relevance of Akpaka's testimony—does not comport with his trial objection "to any evidence from [that] witness." See Yazdchi, 428 S.W.3d at 844. Accordingly, Aguero has failed to preserve that complaint for appellate review. We overrule Aguero's first issue.
Aguero failed to preserve error as to propriety of State's closing argument
In his second issue, Aguero contends that the district court erred by overruling defense counsel's objection to the portion of the State's closing argument to the jury that Aguero perceived as a comment on his failure to testify. Aguero complains specifically about the prosecutor's statement that, "You can certainly infer that [Aguero] knows he's guilty, and he's going to get convicted." To preserve a complaint of jury-argument error, the complaining party must make a contemporaneous objection and receive an adverse ruling. Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992); see Tex. R. App. P. 33.1(a). The objection must be made "as soon as the ground for complaint is apparent or should be apparent." Lovill v. State, 319 S.W.3d 687, 692 (Tex. Crim. App. 2009).
Here, the record reflects that defense counsel did not object to the State's argument contemporaneously, but rather made his objection only after the State had discussed Aguero's absence from trial, the permissible inferences from his absence, an instruction in the charge on voluntary intoxication, and the State's anticipated attacks on the credibility of certain witnesses:
[Prosecutor]: I'm sure that [it] is very obvious to y'all who it is that is missing here today. And while this charge will instruct you that you are not allowed to consider whether the defendant testified or not, it is perfectly okay for you to consider his
flight in the middle of this trial and infer what you may from that.
It kind of reminds me of a little kid playing on the playground, and they really don't like the way the game is going, and so he takes his ball and goes home. So after the defendant sees how it went yesterday, how the testimony went, how [the victim] testified, and how his good friend Michael Perez, who he didn't think would come down here and testify, came and told how he told Michael Perez, "Hey, you take the rap for me," you know, he doesn't show up again today after he hears all of that.
. . . .
And then his flight, that is something else that you can consider. And you can consider those to prove the defendant's intent or his state of mind, you know, his flight. What is his state of mind? Why isn't he here? You can certainly infer that he knows he's guilty, and he's going to get convicted.
Now, there is an instruction here about voluntary intoxication, and that's in there—I don't think there's really any testimony that the defendant was drunk; but in case anybody starts thinking down that road, even if he was, it's not a defense to committing a crime in Texas. And I believe the only evidence was that he had a couple of beers. So, just, you know, don't get hung up on whether or not somebody's drinking affected their perception or caused them to do these actions. It's not a defense, even if he was intoxicated. But like I said, I don't think the evidence shows that he was.
[Defense counsel], I think, is going to get up here and talk to you about why you shouldn't believe [the victim] and [Ortega's brother] and Erica and Michael Perez and everybody that we have had come in here and testify. But while he is doing that, I want you to think, have you ever once heard any motives by any of these people to make up these charges[?] Have you ever heard of any motives by [the victim] to get attention or get revenge on Erica or get revenge on—
[Defense counsel]: I'm going to object. May we approach?
THE COURT: Approach.
(At the bench, on the record.)
[Defense counsel]: I think this jury argument makes [a] comment about my client's not testifying. She's commenting upon the defendant in this case, and I would object to this line of—
[Prosecutor]: I'm not trying to comment. I'm showing what the evidence is, and I can comment on what it didn't show.
THE COURT: Sounds permissible to me.
[Defense counsel]: Note my objection.
THE COURT: Fine.
(Bench discussion concluded.)
Aguero's complaint that the State was purportedly commenting on his failure to testify was apparent well before the State proceeded to discuss the voluntary-intoxication instruction in the charge and the anticipated attacks on the credibility of the testifying witnesses. There was no objection when the State discussed the fact of Aguero's flight and the inferences that the jury was allowed to make about his state of mind and his absence from the trial. Because Aguero did not make a contemporaneous objection to the complained-of argument as soon as the grounds for his complaint became apparent, he failed to preserve error as to the propriety of the argument that he perceived as a comment on his failure to testify. See Tex. R. App. P. 33.1(a); Lovill, 319 S.W.3d at 692; Cooks, 844 S.W.2d at 727; Bullis v. State, Nos. 11-14-00240-43-CR, 2016 Tex. App. LEXIS 10727, at *22 (Tex. App.—Eastland Sept. 30, 2016, no pet.) (mem. op., not designated for publication) (holding that error was not preserved because defense counsel did not timely object to prosecutor's closing argument); Rocha v. State, No. 14-10-00569-CR, 2012 Tex. App. LEXIS 2701, at *31-32 (Tex. App.—Houston [14th Dist.] Apr. 5, 2012, pet. ref'd) (mem. op., not designated for publication) (concluding that defendant failed to preserve error by not objecting to State's purported comment on his post-arrest silence when grounds for that complaint first became apparent). We overrule Aguero's second issue.
CONCLUSION
We affirm the district court's judgment of conviction.
/s/_________
Jeff Rose, Chief Justice Before Chief Justice Rose, Justices Goodwin and Field Affirmed Filed: May 15, 2018 Do Not Publish