Opinion
NO. 01-16-00885-CR NO. 01-16-00886-CR
07-12-2018
SAMUEL GALLEGOS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 184th District Court Harris County, Texas
Trial Court Case Nos. 1452140 & 1452142
MEMORANDUM OPINION
A jury convicted appellant Samuel Gallegos of two counts of aggravated sexual assault of a child, and it assessed a punishment of 50 years in prison for each count, to run concurrently, and a fine of $10,000. Appellant raises three issues on appeal, all of which arise from the admission of testimony about an unrelated injury-to-child offense for which he received deferred adjudication. He contends that the trial court erred by admitting the extraneous-offense evidence, and that the court showed bias by suggesting a legal basis for admission of the evidence that was not articulated by the State. He further argues that the trial court caused him egregious harm by failing to give the jury a limiting instruction about its consideration of the extraneous-offense evidence.
We conclude that appellant's complaints about the admissibility of extraneous-offense evidence were not preserved; that the trial court's articulation of a legal theory during a bench conference to support the admission of evidence did not violate due process; and in the absence of a request the trial court did not err by failing to give a limiting instruction relating to extraneous-offence evidence. Accordingly, we affirm the judgment of the trial court.
Background
Angelica and Rueben Gallegos were married for nine years before separating in 1999. During that time, they had two children-son I.G. and daughter N.G. When the couple separated, Rueben moved in with his mother, Lydia. Several of Rueben's siblings also lived in Lydia's house at that time, including his brother, appellant Samuel Gallegos.
At the time of their parents' separation, I.G. was nine years old, and N.G. was six. They lived with Angelica. The parents agreed that Rueben would see the children every other weekend, and Angelica took the children to Lydia's house for those visits. The visits stopped in 2002 after I.G. told his mother he did not want to go back to Lydia's house.
In 2012, N.G. told Reuben that appellant had sexually assaulted her when she was a child. He did not notify the police. Approximately one year later, N.G. told Angelica that appellant had sexually abused both her and I.G. when they were children. I.G. confirmed the abuse. They later reported the abuse to police. Appellant was indicted on two separate counts of aggravated sexual assault of a child, one each for I.G. and N.G.
The case proceeded to trial, and a jury found appellant guilty on both counts of aggravated sexual assault. It assessed punishment at 50 years in prison on each count. This appeal ensued.
Analysis
I. Admission of extraneous-offense evidence
Appellant contends that the trial court abused its discretion by allowing the State to elicit testimony about an unrelated injury-to-a-child offense.
After the jury was selected but before the presentation of any evidence, the trial court considered the State's motion in limine. Appellant had a daughter, C.G., who was born in 1999. Later, C.G. went to live with Angelica and Rueben, who were awarded custody of the child. The State requested a limine order covering various subjects, including: a witness's bad acts or resulting criminal charges which were unrelated to the case; any implication that Angelica had raised C.G.; and any implication that C.G. was the subject of a custody dispute between appellant and Angelica. The State explained that appellant had told police that he had a custody dispute with Angelica involving C.G. It contended that there was no factual basis for the assertion that there had ever been a custody dispute, and it argued that any reference to the matter would confuse and mislead the jury.
The trial court ruled that appellant could address the custody issue as it related to a witness's motive to testify. In response to the limine ruling, the State suggested that it should be permitted to address appellant's "bad acts" surrounding the removal of C.G. from her home if appellant attempted to impeach the motives of the State's witnesses by introducing evidence of the custody dispute. The trial court warned appellant that exploring that topic could "open the door to all kind of stuff."
After the State rested its case, and outside the presence of the jury, defense counsel explained his theory of the case to the trial judge. He stated to the court that he intended to prove that "[Angelica] and the kids concocted this against [appellant], this alleged sexual assault . . . because she has custody of [C.G.] . . . she is trying to keep [appellant] away from [C.G.]." The defense thus suggested that witnesses were biased because if appellant was sent to jail, he would have no more contact with C.G.
Appellant called Karen Hatten as a defense witness. Hatten had lived in Lydia's house from 1999 to 2002 while she was dating appellant. She and appellant had a daughter, C.G., in 1999. During direct examination by defense counsel, the following exchange occurred:
Q. When is the last time that you saw your daughter?
A. August, 2003.
Q. And why is that?
A. Angelica took her.
Q. Anyone else besides Angelica?
A. It was [appellant], Rueben, Angelica.
The State approached the bench after appellant's redirect examination of Hatten, and it argued that the "testimony elicited with regard to the taking of [appellant's] child by Angelica . . . has opened the door to addressing . . . that issue and not leaving the jury with a misimpression of exactly what happened here, this witness's personal knowledge of that." The trial judge responded that the prosecutor could ask Hatten whether there was a court order awarding custody of C.G. to Angelica. The judge further inquired about whether the State was "trying to get in abuse and neglect." The prosecutor responded that "the impression left with the jury at this time is that the baby was stolen," and he wanted to ask Hatten whether "it's true that the baby was taken by CPS and then the family courts awarded custody." The trial judge permitted the prosecutor to inquire about that subject. The judge also stated: "I guess technically it's admissible under [article] 38.37 to show his character."
While still at the bench, outside the presence of the jury, the following exchange then occurred:
[DEFENSE COUNSEL]: . . . Judge, I don't think the door is opened because I didn't go into it.
[THE COURT]: Well, this has to do with a different rule, 38.37, the defendant's - it's an exception to the character rule.
. . . .
[DEFENSE COUNSEL]: But his character - he hasn't taken the stand yet. His character is not an issue right now.
[THE COURT]: That's not the way the rule works. So, your objection is overruled. . . .
The State proceeded to question Hatten and elicit testimony that she had given up her parental rights to her daughter and that Angelica had been awarded custody of C.G. The State also inquired about whether Child Protective Services had been involved in that case, asking whether the custody issue began after appellant had been charged with an offense involving injury to another child, G.B. Hatten agreed that appellant had been charged with injuring G.B., who was the son of another woman appellant had dated.
The State did not elicit any other details concerning the injury-to-a-child offense. On further redirect examination, defense counsel asked Hatten who had taken her child from her. She again stated that Angelica, Rueben, and appellant had taken the child.
Later, when appellant testified in his own defense, he testified that he had a bad relationship with Angelica, who was "always . . . manipulating." Appellant suggested that Angelica persuaded him to think he "was doing the right thing" by giving his child to her, resulting in him not seeing C.G. for "about 14 years" as of the time of trial.
On cross-examination of appellant, the State asked whether custody of C.G. ultimately was awarded to Angelica because of "what happened" between him and "a 4-year-old boy by the name of [G.B.]" Appellant's counsel did not object to the question. Appellant denied the allegation. The State then continued to pose questions, without objection, about appellant's admission to police that he "hit that little boy," the extent of the G.B.'s injuries, and appellant's initial lies to the mother about how the child had been hurt.
For a party to preserve a claim of error in a trial court's ruling admitting or excluding evidence, he must make a timely objection or a motion to strike the evidence, and he must obtain a ruling. See TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a). The party must object every time the allegedly inadmissible evidence is offered. "[A]n error in admission of evidence is cured where the same evidence comes in elsewhere without objection; defense counsel must object every time allegedly inadmissible evidence is offered." Hudson v. State, 675 S.W.2d 507, 511 (Tex. Crim. App. 1984).
Regardless of any error that may have occurred when the extraneous-offense evidence was initially admitted through Hatten's testimony, there was no objection when the subject of him hitting a child came up again in another context. After affirmatively testifying that Angelica's manipulation induced him to give up custody of his child, C.G., appellant conceded on cross-examination that he had admitted to police that he injured another child, G.B., by hitting him. Thus the error, if any, in the initial admission of the extraneous-offense evidence was waived by appellant's failure to object each time the evidence was offered. We overrule appellant's objection to the admission of the extraneous-offense evidence.
II. Impartiality of trial judge
Appellant contends that the trial court violated his right to due process. He asserts that the judge abandoned her role as an independent arbiter and assisted the State with its prosecution by proposing an alternative basis upon which extraneous-offense evidence could be admitted, and by subsequently ruling that the State could elicit detailed testimony about the offense on that basis. He contends that because the trial court ruled in favor of the State based on a ground not suggested or argued by the State, but rather a ground suggested by the trial judge herself, he was deprived of his right to an impartial judge. He argues that he was harmed because the extraneous-offense evidence was irrelevant to the charged offenses and inadmissible, and it "irreparably" destroyed his character.
Due process requires that a criminal trial be held before an impartial and detached judge. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). To satisfy this requirement, the judge must have "no actual bias against the defendant or interest in the outcome of his particular case." Avilez v. State, 333 S.W.3d 661, 673 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd) (quoting Bracy v. Gramley, 520 U.S. 899, 905, 117 S.Ct. 1793, 1797 (1997)). A judge should not assume the role of a prosecutor, nor should she act as an advocate for or an adversary to any party. Id.; Dockstader v. State, 233 S.W.3d 98, 108 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd).
A judge "can lawfully provide guidance and manage the presentation of evidence from the bench without abandoning [her] role as an independent arbiter." Strong v. State, 138 S.W.3d 546, 552 (Tex. App.—Corpus Christi 2004, no pet.) (citing TEX. R. EVID. 611(a)). The trial court may exercise reasonable control over the mode of presenting evidence so as to make it effective for determining the truth and to avoid wasting time. See TEX. R. EVID. 611(a).
"To reverse a judgment on the ground of improper conduct or comments of the judge, we must find (1) that judicial impropriety was in fact committed, and (2) probable prejudice to the complaining party." Wilson v. State, 473 S.W.3d 889, 903 (Tex. App.—Houston [1st Dist.] 2015, pet. ref'd) (quoting Dockstader, 233 S.W.3d at 108). To make this determination, we review the entire record. Dockstader, 233 S.W.3d at 108.
In a bench conference, the trial judge was presented a question about the admissibility of extraneous-offense evidence. In making its final decision, the judge articulated a basis upon which she believed the evidence was admissible. Appellant does not contend that this statement was heard by the jury, but he argues that by merely suggesting an alternative theory of admissibility for the evidence the State sought to introduce, the trial judge "threw off the raiment of impartiality and became an advocate for the State."
The State was the proponent of the evidence, and in compliance with a pretrial limine ruling, it sought permission to elicit the evidence from a witness. As a general matter, there is no rule requiring a proponent of evidence to affirmatively articulate a specific legal basis to justify offering the evidence. It is, instead, the responsibility of the party who opposes admission of the evidence to articulate specific objections. See TEX. R. EVID. 103(a). Thus, in the context of discussing whether to permit evidence in light of a prior limine ruling and the subsequent events of the trial, there was no impropriety or partiality demonstrated by the mere statement by the trial judge—outside the presence of the jury—of a legal rule that might justify permitting the evidence to be offered. Indeed, by informing counsel of her thought process in permitting the evidence to be offered, which she had no duty to divulge, the trial judge actually aided the defense by giving appellant's counsel an opportunity to address that theory of admissibility and present an argument about why it should not apply. See, e.g., Rubio v. State, No. 04-13-00436-CR, 2014 WL 1319336, at *2 (Tex. App.—San Antonio Apr. 2, 2014, no pet.) (mem. op., not designated for publication) (trial judge did not abuse his discretion by injecting basis for State's objection, and subsequently explaining to defendant what would make the evidence admissible, as both actions were made in an effort to expedite the process, rather than inject unfairness).
We conclude that the trial judge's statement did not demonstrate bias or partiality in favor of the State, nor did it indicate the judge's views about appellant's guilt or innocence. There is no suggestion that it was heard by the jury, so the statement presented no concern of unfairly influencing or prejudicing the jury. See Strong, 138 S.W.3d at 553. Thus we find no error in the trial judge's comment, in the course of a bench conference, suggesting a possible legal basis for admitting proposed evidence. We overrule appellant's due process challenge.
III. Jury charge
Appellant contends that the trial court erred by instructing the jury that it could consider extraneous-offense evidence for the purpose of character conformity. The State argues that there was no error because appellant failed to request a limiting instruction at the time the evidence was offered.
In analyzing an alleged jury-charge error, we use a two-step review to decide whether reversal is required. Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). First, we decide whether an error exists. Id. If we determine that an error exists, we analyze the error for harm. Id.
The trial court allowed the State to elicit testimony about appellant's injury-to-a-child offense, ostensibly based on article 38.37. The court's charge tracked the Code of Criminal Procedure and provided:
The State has introduced evidence of extraneous crimes or bad acts other than the one charged in the indictment in this case. This evidence was admitted only for the purpose of assisting you, if it does, for any bearing the evidence has on relevant matters, including the character of the defendant and acts performed in conformity with the character of the defendant. You cannot consider the testimony unless you find and believe beyond a reasonable doubt that the defendant committed these acts, if any.See TEX. CODE CRIM. PROC. art. 38.37, § 2(b).
Extraneous-offense evidence generally is not admissible to prove a person's character or his conformity therewith on a particular occasion. TEX. R. EVID. 404(b)(1). Article 38.37 provides an exception to the general rule prohibiting character conformity evidence. Appellant failed to specifically argue the inapplicability of article 38.37 at any point during the trial. Likewise, he never requested that the trial court omit the instruction now challenged on appeal.
Because appellant failed to request a limiting instruction when the extraneous-offense evidence was admitted, the evidence was admitted for all purposes, including to show character conformity. See TEX. R. EVID. 105(a); Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007). In the absence of a request, the trial judge had no duty to give any limiting instruction concerning the use of extraneous-offense evidence. See Delgado, 235 S.W.3d at 254. Accordingly, we overrule appellant's objection to the jury charge.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice Panel consists of Justices Keyes, Bland, and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).