No. 01-09-00982-CR
Opinion issued April 7, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 208th District Court, Harris County, Texas, Trial Court Case No. 1130928.
Panel consists of Justices KEYES, SHARP, and MASSENGALE.
MICHAEL MASSENGALE, Justice.
A jury convicted appellant Jaime Matias of sexual assault and assessed punishment at 15 years in prison. See TEX. PENAL CODE ANN. § 22.011 (West Supp. 2010). In his sole appellate issue, Matias contends that the trial court abused its discretion by admonishing him that evidence of an unadjudicated extraneous offense would be admissible if he testified that the complainant consented to the sexual encounter. We affirm.
Background
Matias brought the complainant to a house under the premise of a house cleaning job. According to the complainant, while there, Matias sexually assaulted her. At trial, outside the presence of the jury, the trial court asked if Matias intended to testify. The trial court explained that it was his choice whether to testify, but if he testified that the sexual encounter was consensual, the State could introduce rebuttal evidence pertaining to another pending sexual assault case. Matias indicated that he understood but that he intended to testify anyway. Speaking through a Spanish-English interpreter, he said, "I have to, no matter what, even if they put [on] the other evidence." The next day, before taking the stand, Matias changed his mind. He said that based on his conversation with defense counsel, his observation of the complainant's testimony, and a conversation with his wife, he no longer wished to testify. DEFENSE COUNSEL: Mr. Matias, I want to talk to you at this time about your decision whether or not you elect to testify in this case. Okay? You understand that you have the right to remain silent. By remaining silent, you answer no questions for me or any from the district attorney. And if we did that, then I would just rest our case, the jury would make their decisions on guilt or innocence solely from the evidence that has been propounded so far?
COURT: Why don't you answer out, sir? Do you understand all that, sir?
MATIAS: Yes, I will remain silent.
DEFENSE COUNSEL: So at this time it's your decision not to take the stand, correct?
MATIAS: It's correct.
DEFENSE COUNSEL: And to let the jury make their decision of your guilt or your innocence based on what they've heard so far. Is that correct?
MATIAS: That's correct.
DEFENSE COUNSEL: Now, yesterday you had said that you wanted to testify. What has caused you to change your mind?
MATIAS: Everything I spoke about with you, I prefer to leave it in your hands. I noticed that the girl yesterday seemed very, very nervous and she acted like she was raped. I'm saying this again: I never raped her, but I prefer that the jury make the decision.
DEFENSE COUNSEL: And did you discuss this with your wife on the telephone last night?
MATIAS: Yes.
DEFENSE COUNSEL: And does that also play a part in your decision today?
MATIAS: Yes.
The defense rested without introducing any evidence, and the jury found Matias guilty.
Analysis
On appeal, Matias brings a single issue complaining that the trial court abused its discretion by informing him of the potential rebuttal evidence in the event he elected to testify in his defense. Matias argues that this "threat" of the admission of the unadjudicated extraneous offense is the reason he did not testify. Matias's brief focuses on the dissimilarity between the charged offense and the extraneous offense and why the extraneous offense would not have been admissible. To preserve error for appellate review, the complaining party must make a "timely request, objection, or motion." TEX. R. APP. P. 33.1(a)(1). Matias did not testify during the guilt-innocence phase of trial. The State did not actually offer evidence pertaining to the extraneous offense; therefore, Matias could not and did not object to the admission of the extraneous offense during the guilt-innocence phase of trial. Moreover, Matias did not obtain a pretrial ruling on the admissibility of the extraneous offense; rather, the trial court, in its conversation with Matias, said that the extraneous offense was "probably admissible" only if Matias testified that the complainant consented to the sexual encounter. Compare Garza v. State, 126 S.W.3d 79, 84 (Tex. Crim. App. 2004) (holding that trial court's ruling on pretrial motion to suppress preserves error for appeal), and Belton v. State, 900 S.W.2d 886, 898 (Tex. App.-El Paso 1995, pet. ref'd) (challenging trial court's denial of appellant's motion to exclude evidence), with Geuder v. State, 115 S.W.3d 11, 14-15 (Tex. Crim. App. 2003) (noting that motion in limine is preliminary ruling that preserves nothing for appeal), and Powell v. State, 898 S.W.2d 821, 829 (Tex. Crim. App. 1994) (holding that objection to conditionally admitted evidence did not preserve error when appellant did not renew objection upon State's failure to introduce sufficient "connecting" evidence). At the time the court made this comment, there was no motion before the court. Matias did not move to suppress or exclude the evidence; there was no pending motion in limine; and there was no motion from the State seeking a ruling on the admissibility of the evidence. Accordingly, we do not construe the trial court's comments as a pretrial ruling on the admissibility of evidence. In addition, Matias did not object to the trial court's statements that informed him of a possible consequence of his testifying that the complainant consented to the sexual encounter. Nor did he make a record showing how he would have testified if the State were not permitted to impeach him with evidence of the extraneous offense. See TEX. R. APP. P. 33.2; see also Mays v. State, 285 S.W.3d 884, 889-91 (Tex. Crim. App. 2009) (holding that error not preserved if offer of proof is inadequate). In a footnote, Matias argues that a criminal defendant has a fundamental constitutional right to testify in his own defense. Even broadly construing Matias's brief as raising an issue of fundamental error, we conclude that his argument lacks without merit. See Saldano v. State, 70 S.W.3d 873, 888 (Tex. Crim. App. 2002) (holding that fundamental error may be raised for first time on appeal); accord Avilez v. State, Nos. 01-07-00591-CR, 01-07-00592-CR, 2010 WL 3928084, at *8 (Tex. App.-Houston [1st Dist.] Oct. 7, 2010, pet. denied). A defendant has a right to testify at his own trial, and such a right is fundamental and personal to the defendant. Johnson v. State, 169 S.W.3d 223, 232, 235 (Tex. Crim. App. 2005) (citing Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 2709)); see Agosto v State, 288 S.W.3d 113, 116 (Tex. App.-Houston [1st Dist.] 2009, no pet.). However, a defendant may knowingly and voluntarily waive this right. See Smith v. State, 286 S.W.3d 333, 338 n. 9 (Tex. Crim. App. 2009) (citing Rock, 483 U.S. at 51-52, 107 S. Ct. at 2709). Matias argues on appeal that he did not testify during the guilt-innocence phase of trial because the trial court informed him that the State could introduce evidence of an extraneous offense if he did. The record does not support this argument. Immediately after the trial court's statements, Matias said he had to testify, even if it meant the State would introduce the rebuttal evidence. The next day, Matias stated on the record that he decided not to testify based on advice of his trial counsel, a conversation with his wife, and his observations of the complainant's demeanor while testifying. Thus, the record reflects that Matias knowingly and voluntarily waived his right to testify. See id. Nothing in the record supports a conclusion that the trial court's statements deprived Matias of his constitutional right to testify. We overrule Matias's sole issue. Conclusion
We affirm the judgment of the trial court.