Opinion
NUMBER 13-19-00040-CR
07-09-2020
JOSE RAMIREZ GARCIA A/K/A JOSE GARCIA RAMIREZ, Appellant, v. THE STATE OF TEXAS, Appellee.
On appeal from the 107th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Perkes, and Tijerina
Memorandum Opinion by Justice Tijerina
Appellant Jose Ramirez Garcia a/k/a Jose Garcia Ramirez appeals his convictions of one count of continuous sexual abuse of a child under fourteen years of age, a first-degree felony, two counts of indecency with a child by contact, second-degree felonies, and two counts of indecency with a child by exposure, third-degree felonies. See TEX. PENAL CODE ANN. §§ 21.02, .11. Appellant received a sentence of fifty years' incarceration for continuous sexual abuse of a child under fourteen years of age, ten years' incarceration for each count of indecency with a child by contact, and five years' incarceration for each count of indecency with a child by exposure. The continuous sexual abuse of a child and indecency with a child by contact punishments will run consecutively and the indecency with a child by exposure punishments will run concurrently. By seven issues, which we have renumbered and reorganized, appellant contends that: the evidence is legally insufficient to support a conviction of continuous sexual abuse of a child (first issue); and the trial court erred by denying his motion for continuance (second issue), denying his motion to sever (third issue), improperly allowing "outcry evidence" (fourth issue), qualifying a child witness in the jury's presence (fifth issue), allowing the State to question him about his post-arrest silence (sixth issue), and including an improper instruction in the punishment charge (seventh issue). We affirm.
I. SUFFICIENCY OF THE EVIDENCE
By his first issue, appellant contends we should reverse his conviction of continuous sexual abuse of a child because there is no evidence that the acts of sexual abuse occurred during a period that is thirty or more days. See id. § 21.02(b).
A. Standard of Review and Applicable Law
In determining the sufficiency of the evidence, we consider all the evidence in the light most favorable to the verdict and determine whether a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt based on the evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d 159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.). The fact finder is the exclusive judge of the facts, the credibility of witnesses, and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We resolve any evidentiary inconsistencies in favor of the judgment. Id.
Sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). "Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240.
A person commits the offense of continuous sexual abuse of a child if:
(1) during a period that is 30 or more days in duration, the person commits two or more acts of sexual abuse, regardless of whether the acts of sexual abuse are committed against one or more victims; andTEX. PENAL CODE ANN. § 21.02(b). An "act of sexual abuse" is an act that violates one or more specified penal laws, among them indecency with a child by contact, aggravated sexual assault of a child, sexual assault of a child, and sexual performance by a child. Id. § 21.02(c).
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17 years of age or older and the victim is a child younger than 14 years of age.
B. A Duration of Thirty Days or More
Appellant asserts there is no evidence that the sexual abuse occurred for a duration of thirty days or more. See id. § 21.02(b). The jury was instructed to find appellant guilty of continuous sexual abuse of a child if, among other things, the evidence showed that, during a period that was thirty days or more, he committed two or more acts of sexual abuse against V.J. and/or J.J., when either child was under fourteen years of age. See id.
Appellant does not challenge the other elements of continuous sexual abuse of a child.
We note that the charge instructed the jury to find appellant guilty of continuous sexual abuse if there was evidence that appellant committed the crime against two other children, who also testified at his trial. However, as we have concluded that the evidence is sufficient regarding the duration element as to V.J. and J.J., we need not set out the evidence supporting the duration element as to the other children. See TEX. R. APP. P. 41.7.
In a video admitted into evidence, J.J. said that when she was eight, appellant put his penis in her "butt" on three occasions, and he put his penis in her vagina on another three occasions. J.J. stated that the sexual abuse started in September and ended in November. V.J. testified that the sexual abuse occurred "[b]etween one and two years, because [appellant] came and lived with [her family] while he was trying to look for a job." According to V.J., among other things, appellant touched her "private" with his hand and touched her butt with his penis. Each child testified that the sexual abuse occurred for a duration of thirty days or more. See id. (requiring two acts of sexual abuse to occur within a period of thirty days or more). Therefore, viewing the evidence in the light most favorable to the verdict, we conclude that a rational fact finder could have found that the duration of the sexual abuse committed by appellant occurred during a period that was thirty days or more beyond a reasonable doubt based on the evidence presented and reasonable inferences from that evidence. See Whatley, 445 S.W.3d at 166; Brooks, 323 S.W.3d at 898-99. We overrule appellant's first issue.
As a sub-issue to his first issue, appellant contends that the evidence is factually insufficient. However, under Brooks we no longer apply a separate factual sufficiency review, and we no longer reverse and remand for insufficient evidence. Brooks v. State, 323 S.W.3d 893, 898-99 (Tex. Crim. App. 2010) (plurality op.). We must apply the above-stated standard of review, and if the evidence is insufficient, we render an acquittal. See id. Thus, appellant's contention is no longer viable under Brooks. See id. Accordingly, we overrule it.
II. MOTIONS FOR CONTINUANCE
By his second issue, appellant contends that the trial court erred by denying two of his motions for continuance. First, appellant argues that the trial court should have granted an oral motion for continuance made by his court appointed attorney (appointed counsel). Next, appellant argues that the trial court improperly denied a motion for continuance filed by his subsequently retained counsel (retained counsel).
A. oral Motion for continuance
"A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown[.]" TEX. CODE CRIM. PROC. ANN. art. 29.03 (emphasis added); Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009). Thus, to preserve an argument that the trial court improperly denied a motion for continuance, the complaining party must have filed a sworn written motion. Anderson, 301 S.W.3d at 280. A party who makes an unsworn oral motion for continuance forfeits a complaint on appeal about the trial court's denial. Id.
During a pre-trial hearing, appellant's appointed counsel orally requested a continuance claiming he needed more time to prepare because the State informed him of additional discovery. The trial court denied the oral motion for continuance. Appellant did not file a sworn written motion and relied solely on his unsworn oral motion. Thus, appellant forfeited his right to complain of the trial court's denial of his oral motion on appeal. See id.
B. Motion for continuance Filed by Retained counsel
Next, appellant argues that the trial court abused its discretion by denying his retained counsel's motion for continuance because his retained counsel "needed more time . . . to be prepared."
1. Standard of Review and Applicable Law
We review a trial court's decision denying a motion for continuance under an abuse of discretion standard. Renteria v. State, 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). The defendant establishes that the trial court abused its discretion by showing that he was actually prejudiced by the denial of his motion. Gallo v State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). "To find an abuse of discretion in refusing to grant a motion for continuance, there must be a showing that the defendant was prejudiced by his counsel's inadequate preparation time." Heiselbetz v. State, 906 S.W.2d 500, 511 (Tex. Crim. App. 1995). Ordinarily, a motion for new trial hearing is a proper place for the development of evidence showing how a defendant was harmed by the trial court's denial of a requested continuance. Gonzales v. State, 304 S.W.3d 838, 842-43 (Tex. Crim. App. 2010).
2. Discussion
Appointed counsel began representing appellant on April 17, 2018. On December 3, 2018, the date that appellant's trial began, during a pre-trial hearing, appellant informed the trial court that he had hired his retained counsel. Appellant's appointed counsel and retained counsel were both present at this hearing.
Appellant's retained counsel referenced a written motion for continuance, wherein he sought a continuance on the basis that he had "recently been retained and [would] need additional time to review the case." Appellant's retained counsel did not state any other basis to support his assertion that he needed a continuance. The trial court denied the motion for continuance stating that appellant's appointed counsel had been on the case "for a long time already" and "this [motion for continuance] is at the last minute." Appellant's retained counsel replied that he would serve as co-counsel to appellant's appointed counsel. The trial court agreed stating, "Yes, you will be his co-counsel." Appellant's appointed counsel then asked to withdraw from the case on the basis that appellant could now afford to hire an attorney. Appellant's retained counsel disagreed stating, "Under the circumstances, I can co-counsel with [appointed counsel], Your Honor, again, because you denied my Motion for Continuance . . . ." The trial court denied appointed counsel's motion to withdraw, and both appellant's appointed counsel and retained counsel represented him during the trial court proceedings.
Appellant did not file a motion for new trial arguing that he was prejudiced by the trial court's denial of his retained counsel's motion for continuance. Moreover, at the pre-trial hearing regarding the motion for continuance, appellant did not allege or show that he would be prejudiced by the trial court's denial of the motion. Appellant's retained counsel merely asserted that he needed more time to prepare because he was new to the case. Appellant's retained counsel's statement that he needed more time to prepare does not alone establish prejudice. See Heiselbetz, 906 S.W.2d 512 (determining that a bare assertion that defense counsel did not have adequate time to interview witnesses does not alone establish prejudice). In addition, the trial court did not allow appellant's appointed counsel who had represented him throughout the previous proceedings to withdraw and ordered that appellant's newly retained counsel act as co-counsel, which he did. Thus, we do not have a record that shows that appellant was actually prejudiced by the denial of the motion. See id. at 511; see also Gonzales, 304 S.W.3d at 842-43. Accordingly, we conclude that appellant has failed to demonstrate that he was harmed by the trial court's denial of his retained counsel's motion for continuance; therefore, we conclude that the trial court did not abuse its discretion by denying it. See Gallo, 239 S.W.3d at 764. We overrule appellant's second issue.
It appears that appellant argues that the trial court should have granted his newly retained counsel's motion for continuance on the basis that the State provided new evidence to him. However, appellant's newly retained counsel did not request a continuance on that basis. Therefore, this issue is not preserved. See TEX. R. APP. P. 33.1(a)(1).
III. MOTION TO SEVER
By his third issue, appellant contends that the trial court committed reversible error by denying his "motion to sever the counts of the indictment." The State responds that appellant has failed to show that he was unfairly prejudiced by the joinder of these offenses. See TEX. PENAL CODE ANN. §§ 3.03(b), 3.04.
A. Standard of Review and Applicable Law
We review a trial court's denial of a motion to sever under an abuse of discretion standard of review. Hodge v. State, 500 S.W.3d 612, 621 (Tex. App.—Austin 2016, no pet.); Adams v. State, 180 S.W.3d 386, 400 (Tex. App.—Corpus Christi-Edinburg 2005, no pet.). A trial court abuses its discretion if its ruling is clearly wrong, lies outside the zone of reasonable disagreement, or is arbitrary or unreasonable. Hodge, 500 S.W.3d at 621; Adams, 180 S.W.3d at 400.
If all offenses arise out of the same criminal episode, a defendant may be prosecuted in a single trial. TEX. PENAL CODE ANN. § 3.02(a). A "criminal episode" occurs when the defendant commits two or more offenses even if the harm is directed toward or inflicted upon more than one person when the offenses are the repeated commission of the same or similar offenses. Id. § 3.01. Although a defendant usually has an absolute right to severance of most charges that do not arise from the same criminal episode, there are several exceptions. Werner v. State, 412 S.W.3d 542, 546 (Tex. Crim. App. 2013); see TEX. PENAL CODE ANN. § 3.04(c). For example, the right to severance in cases that do not arise from the same criminal episode does not automatically apply to the prosecution of offenses described in § 3.03(b) of the Texas Penal Code. TEX. PENAL CODE ANN. § 3.04(c). Offenses listed in § 3.03(b) include, as pertinent here, continuous sexual abuse of a child and indecency with a child by contact and exposure. Id. § 3.03(b); see also Minor v. State, No. 05-15-01060-CR, 2017 WL 462342, at *1 (Tex. App.—Dallas Feb. 3, 2017, no pet.) (mem. op., not designated for publication). When these offenses are charged, the trial court will sever the causes only if it "determines that the defendant or the state would be unfairly prejudiced by a joinder of offenses . . . ." TEX. PENAL CODE ANN. § 3.04(c). "For these types of offenses, there is no presumption that the joinder of cases with different child victims is unfairly prejudicial, and the defendant bears the burden of showing how he would be unfairly prejudiced through consolidation." Hodge, 500 S.W.3d at 621 (internal citations omitted).
B. Discussion
The conduct alleged in the indictments specified that appellant committed: (1) continuous sexual abuse by (a) touching with the intent to arouse or gratify his sexual desires the genitals of V.J., V.A., and J.J., and touching G.A.'s anus, (b) intentionally or knowingly causing his finger to penetrate V.J.'s sexual organ, (c) intentionally or knowingly causing his sexual organ to contact V.J.'s, J.J.'s, and J.C.'s anuses, (d) intentionally or knowingly causing his penis to contact V.J.'s and J.J.'s sexual organs and (e) intentionally or knowingly causing J.C.'s mouth to contact appellant's penis; (2) indecency with a child by touching (a) the breast of V.J., a child younger than seventeen, to arouse or gratify his sexual desire and (b) the breast of J.J., a child younger than seventeen, to arouse or gratify his sexual desire; (3) indecency with a child by exposing his genitals to arouse or gratify his sexual desire to (a) V.J., a child younger than seventeen, and (b) G.A., a child younger than seventeen. From these allegations the trial court could have reasonably concluded that the conduct fell within the definition of a "criminal episode" because they involve the repeated commission of similar offenses in that he either exposed his genitals or caused his penis to touch the anuses or sexual organs of the children. See id.; Waddell v. State, 456 S.W.3d 366, 370 (Tex. App.—Corpus Christi-Edinburg 2015, no pet.) (explaining "it need only be shown that the offenses for which a defendant was charged and convicted were the repeated commission of the same or similar offense" and does not require proof that the offenses were committed in the same or similar fashion).
And, as previously stated, in cases "involving multiple felony counts of alleged sex offenses against children, the legislature has balanced competing interests and has determined that the defendant is entitled to sever only if he can show 'unfair' prejudice—i.e., some type of prejudice beyond that which he would automatically face in any case in which felony counts are joined." Hodge, 500 S.W.3d at 622. Here, appellant at his pre-trial hearing stated that failure to sever the continuous sexual assault offenses from the other four counts would result in prejudice because appellant planned to call a witness who had been convicted of sexually abusing two of the children. See id. Thus, according to appellant, confusion would occur "in terms of tainting [appellant] with that act that somebody else had confessed to."
However, § 2 of article 38.37 of the Texas Code of Criminal Procedure provides that evidence that the defendant committed a separate offense of indecency with a child, continuous sexual abuse of a child, sexual assault of a child, or aggravated sexual assault of a child is admissible "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." TEX. CODE CRIM. PROC. ANN. art. 38.37. Thus, even if the trial court had granted appellant's motion to sever, the evidence from the severed causes would have been admissible in the trial. See id.; Hodge, 500 S.W.3d at 623. For these reasons, we cannot conclude that the trial court abused its discretion by determining that appellant failed to meet his burden of showing that joinder of the causes was unfairly prejudicial. Hodge, 500 S.W.3d at 621. Accordingly, we conclude the trial court did not abuse its discretion by denying appellant's motion to sever and overrule appellant's third issue.
IV. OUTCRY WITNESS
By his fourth issue, appellant contends that the trial court abused its discretion by allowing Joanna Frausto, the forensic child interviewer, to testify as the outcry witness for V.J. and J.J.
A. Standard of Review and Applicable Law
The trial court has broad discretion to determine which of several witnesses is an outcry witness. Chapman v. State, 150 S.W.3d 809, 812-13 (Tex. App.—Houston [14th Dist.] 2004, pet. ref'd). We will not disturb the trial court's ruling absent a clear abuse of discretion. Zarco v. State, 210 S.W.3d 816, 830 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The outcry witness must be the first person who is eighteen years or older "to whom the child makes a statement that in some discernible manner described the alleged offense" and provides more than "a general allusion that something in the area of child abuse was going on." Garcia v. State, 792 S.W.2d 88, 92 (Tex. Crim. App. 1990); see TEX. CODE CRIM. PROC. ANN. art. 38.072; Chapman, 150 S.W.3d at 812.
B. Discussion
First, appellant complains that C.J., the mother of V.J. and J.J., was the proper outcry witness for those two children. In the trial court, appellant filed a motion to determine the admissibility of the outcry statements. In his motion, appellant argued that neither C.J. nor Frausto were proper outcry witnesses as to V.J. and J.J. The trial court held a hearing on appellant's motion to suppress outcry examination testimony where C.J. testified that neither of the children made a statement to her about appellant. C.J. testified that her sister informed her that during the night a person who slept close to the two alleged victims told her he "had heard a slap, a slap of underwear." C.J. said this information prompted her to speak individually with the two alleged victims, and she stated, "I tried to talk to them, but they wouldn't tell me anything." C.J. explained that V.J. told her that appellant "had been doing stuff to her." When C.J. asked her to elaborate, V.J. replied, "The same thing as Miguel." C.J. stated that she then spoke with J.J., but J.J. only nodded (presumably affirmatively) when C.J. asked her if appellant had done something to her. According to C.J., neither V.J. nor J.J. divulged any details concerning what appellant had done to them. C.J. testified that she and her husband talked to V.J. and J.J. about what appellant had done to them after the two girls had been interviewed at "Monica's House."
A.J., C.J.'s oldest child, heard the underwear snap.
The trial court admitted evidence that V.J. and J.J. had also been sexually abused by "Miguel."
The trial court granted appellant's motion to the extent that C.J. was not a proper outcry witness and did not allow her to testify as such. After the trial court made this ruling, the State conceded that it would not offer C.J. as an outcry witness and "stipulated" that Frausto was the proper outcry witness. Appellant's trial counsel stated, "That's fine, Judge," and asked, "So, our motion is granted, Your Honor, to that degree," and "[C.J.] is not going to be an outcry witness, our motion is granted in terms of [C.J.] being an outcry witness?" The trial court replied, "That's what [the State] is stipulating to." Appellant's trial counsel then said, "Very good" and "Thank you, Your Honor."
In the trial court, appellant requested that the trial court deny the State's request to designate C.J. as an outcry witness, which the trial court granted. On appeal, appellant argues that C.J. was the proper outcry witness, which does not comport with his argument in the trial court regarding C.J. Therefore, the issue is not preserved. See TEX. R. APP. P. 33.1(a). Moreover, as set out above, neither child told C.J. any details regarding what appellant had done to them prior to their interview at Monica's House. See Garcia, 792 S.W.2d at 92; see TEX. CODE CRIM. PROC. ANN. art. 38.072; Chapman, 150 S.W.3d at 812. Accordingly, we overrule appellant's fourth issue to the extent that he now argues that C.J. was the proper outcry witness.
Next, appellant argues that Frausto was not a proper outcry witness as to V.J. and J.J., and the trial court improperly failed to conduct a hearing pursuant to article 38.072 of the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 38.072. The State responds that appellant did not object to Frausto's testimony when the trial court held a hearing pursuant to article 38.072. At this hearing, the State conceded that C.J. was not a proper outcry witness and stipulated that Frausto was the proper outcry witness. Appellant did not object and stated, "That's fine." Thus, according to the State, appellant's failure to object when the trail court designated Frausto as the proper outcry witness, resulted in a failure to preserve his complaint.
Nonetheless, even assuming error, the trial court admitted, without objection, video recordings of Frausto's interview with V.J. and J.J. Frausto testified that in the video, J.J. said that appellant's "part" had been in her bottom, she felt pain, it hurt, and that the bed was moving when appellant "was pushing his part inside of her private." This is all that Frausto stated that J.J. told her about what appellant had done to her. The State played the video for the jury where J.J. stated that appellant had put his "private in her butt" and that the bed was moving when appellant put his "thing" inside her "private." J.J. explained that it hurt when appellant put his private inside her. In addition, J.J. testified that when she was eight, appellant took off her clothes and she felt his private "inside" her butt; she also stated that on another occasion appellant put his penis inside her vagina. Regarding V.J., Frausto testified that when she interviewed her, V.J. told her that "some white stuff [came] out" of appellant's "private," and he would clean it with a towel. This is the extent of Frausto's testimony regarding what V.J. told her about appellant's acts. In the video shown to the jury, V.J. states that she saw "white stuff" come out of appellant's penis and that he cleaned it with a towel. In addition, V.J. testified that after appellant put his penis in her mouth, something white came out and appellant cleaned himself with a "dirty towel." V.J. said, "Like, he would put [the towel] there for when [the white stuff] would come out."
When the State indicated that it would offer the videos into evidence, appellant's trial counsel stated, "We don't have a problem with the video coming in either . . . . We want the video in anyway." Both videos were shown to the jury.
Thus, Frausto's testimony concerning what the children told her about what appellant did to them was cumulative of other properly admitted evidence, and we conclude it was therefore not harmful. See Chapman, 150 S.W.3d at 815 (finding the trial court's error in admitting improper outcry testimony was harmless because the evidence was cumulative); Duncan v. State, 95 S.W.3d 669, 672 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd) (holding improper admission of outcry testimony was harmless where similar testimony was admitted through complainant, pediatrician, and medical records); Broderick v. State, 35 S.W.3d 67, 75 (Tex. App.—Texarkana 2000, pet. ref'd) (concluding that though the trial court erroneously designated an officer as the outcry witness, the error was harmless because the same evidence was introduced through other testimony without objection); see also Skiba v. State, No. 13-17-00045-CR, 2018 WL 6626724, at *3 (Tex. App.—Corpus Christi-Edinburg Dec. 19, 2018, pet. ref'd) (mem. op., not designated for publication) (explaining that any error associated with the admission of an improper outcry witness's testimony was harmless because the complainant later testified about the sexual abuse (citing Allen v. State, 436 S.W.3d 815, 822 (Tex. App.—Texarkana 2014, pet. ref'd) (concluding that error in admitting testimony of an improper outcry witness was harmless because the child testified, without objection, to the same facts))). We overrule appellant's fourth issue.
V. QUALIFYING A CHILD WITNESS IN THE JURY'S PRESENCE
By his fifth issue, appellant contends that the trial court committed reversible error by qualifying the children in front of the jury. Specifically, appellant complains that the trial court questioned each child in front of the jury "about knowing the difference between telling the truth and a lie." Appellant "concedes that there is no requirement in the Rules of Evidence that the competency hearing of a child must be conducted outside the presence of the jury." Nonetheless, appellant states, "in most cases the questioning is done outside the presence of the jury and each case should be considered on a case to case basis." The State responds that appellant failed to preserve this issue for appellate review. We agree with the State.
To preserve an issue for appellate review, the complaining party must make a specific objection to the trial court at the time the trial court errs. See TEX. R. APP. P. 33.1(a). Here, appellant did not object when the trial court questioned each child regarding the child's understanding of the difference between the truth and a lie. As appellant failed to object on this basis, he did not preserve this issue for our review. See id.; Reyna v. State, 797 S.W.2d 189, 191 (Tex. App.—Corpus Christi-Edinburg 1990, no pet.). Moreover, this Court has concluded that a trial court does not abuse its discretion in qualifying a child witness in front of the jury. See Reyna, 797 S.W.2d at 191; see also Esquivel v. State, No. 13-16-00468-CR, 2017 WL 6379944, at *6 (Tex. App.—Corpus Christi-Edinburg Dec. 14, 2017, pet. ref'd) (mem op., not designated for publication). We overrule appellant's fifth issue.
VI. POST-ARREST SILENCE
By his sixth issue, appellant contends that the trial court committed reversible error in allowing the State to question him about his post-arrest silence.
The record shows that appellant was in jail, on other charges, when officers attempted to question him about the allegations made by V.J. and J.J.
A. Pertinent Facts
While cross-examining appellant, the prosecutor asked, "And the jury has absolutely no idea if you are changing your story because when the Sheriff's Office asked you for a statement, you refused, isn't that correct?" Appellant objected "to that question" on the basis that "it infringe[d] his 5th Amendment rights." The prosecutor acknowledged that she was referring to appellant's refusal to speak with the Sheriff's Department when he was in jail after being arrested on an unrelated charge but argued that appellant "was not under arrest for any offense out of the Sheriff's Office. So the Sheriff's Office deputy or investigator had every right to go and ask him if he wanted to speak." The trial court overruled appellant's objection. The prosecutor then asked appellant "Did you give a statement to the Sheriff's Investigator?" Appellant replied that he "never refused" and that he called his attorney who advised him "not [to] give any statement, and [he] was just doing what [his] attorney had told [him] to do." The prosecutor asked, "So you agree with me you did not give a statement to the . . . investigator, when you were in jail." Appellant said, "At that time, I didn't because my attorney told me not to do that. He told me, I'm going to talk to you first."
Prior to appellant's testimony, Victor Alvarado with the Cameron County Sheriff's Department testified that when he discovered that appellant was in jail, he asked "Investigator Mario Ledesma, [who] was going to the jail . . . [to] make contact with [appellant]" concerning V.J.'s and J.J.'s allegations. Officer Alvarado told Investigator Ledesma to "just ask [appellant] if [he was] willing to talk to me in reference to the allegations." Officer Alvarado testified that Investigator Ledesma went to the jail, contacted appellant, asked him if would talk to Officer Alvarado, and appellant refused. Officer Alvarado repeated that he intended to question appellant in jail concerning V.J.'s and J.J.'s allegations, and he refused. Appellant did not object to Officer Alvarado's testimony.
B. Discussion
The Fifth Amendment to the United States Constitution prohibits the State from impeaching a defendant with his post-arrest, post-Miranda silence. Hampton v. State, 121 S.W.3d 778, 782-83 (Tex. Crim. App. 2003); see Sanchez v. State, 707 S.W.2d 575, 579-80 (Tex. Crim. App.1986) (plurality op.) (explaining that under the Texas Constitution, once a defendant has been arrested and whether he has been provided Miranda warnings or not, the State may not use his silence against him even for impeachment purposes (citing TEX. CONST. art. I, § 10)).
Here, the State elicited testimony from appellant concerning his refusal to speak with officer Alvarado about the charges in this cause while he was in jail on an unrelated charge. However, "incarceration does not always constitute 'custody' for Miranda purposes when an inmate is questioned by law enforcement officials 'regarding an offense separate and distinct from the offense for which he was incarcerated.'" Herrera v. State, 241 S.W.3d 520, 531 (Tex. Crim. App. 2007). Nonetheless, even assuming without deciding that appellant was in custody when he refused to speak with officer Alvarado and his Fifth Amendment rights were violated, the error, if any, was harmless as explained below. See Ramos v. State, 245 S.W.3d 410, 419 (Tex. Crim. App. 2008) (finding the defendant's Fifth Amendment rights had been violated by the State's reference during his trial to the defendant's post-arrest, post-Miranda silence, reversing the judgment of the court of appeals, and remanding the case to that court for a harm analysis under Texas Rule of Appellate Procedure 44.2(a) (citing Clay v. State, 240 S.W.3d 895 (Tex. Crim. App. 2007))).
As set out above, when the State questioned appellant concerning his refusal to speak with officer Alvarado, the trial court had already admitted that same evidence, without objection, through Officer Alvarado's testimony. Thus, the error was harmless. See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim. App. 1998) ("It is well established that the improper admission of evidence does not constitute reversible error if the same facts are shown by other evidence which is not challenged."); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) (concluding the admission of the same evidence without objection rendered the improperly admitted evidence harmless); Reckart v. State, 323 S.W.3d 588, 596 (Tex. App.—Corpus Christi-Edinburg 2010, pet. ref'd). We overrule appellant's sixth issue.
VII. PUNISHMENT CHARGE
By his seventh issue, appellant contends that the trial court improperly instructed the jury in its punishment charge that he "may earn time off the period of incarceration imposed through the award of good conduct time." The State concedes error stating "the jury was erroneously instructed concerning when [a]ppellant might become eligible to be considered for parole." See TEX. CODE CRIM. PROC. ANN. art. 37.07(b); TEX. PENAL CODE ANN. § 21.02(h). We agree there is error because appellant was convicted of continuous sexual abuse of a child and is not eligible for parole. See TEX. GOV'T CODE ANN. § 508.145 (setting out that a person convicted of continuous sexual abuse of a child is not eligible for parole); see also TEX. CODE CRIM. PROC. ANN. art. 37.07(b) (providing that instruction regarding parole must be included in the punishment charge unless "the offense of which the jury has found the defendant guilty is an offense that is punishable under Section 21.02(h)" of the Texas Penal Code); TEX. PENAL CODE ANN. § 21.02(h) (establishing that continuous sexual abuse of a child "is a felony of the first degree, punishable by imprisonment in the Texas Department of Criminal Justice for life, or for any term of not more than 99 years or less than 25 years").
Thus, we must determine whether the error caused egregious harm because appellant did not object to the complained-of instruction. See Stewart v. State, 293 S.W.3d 853, 856 (Tex. App.—Texarkana 2009, pet. ref'd) (citing Igo v. State, 210 S.W.3d 645 (Tex. Crim. App. 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g)). "Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Id. (citing Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008)). We must determine the actual degree of harm "in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. (citing Almanza, 686 S.W.2d at 171).
First, we determine the harm, in part, on the entirety of the jury charge. See id. The punishment charge consisted of sixteen paragraphs, with five of them dealing with good conduct time and parole. Nonetheless, the paragraphs dealing with parole contained curative language admonishing the jury not to consider the manner in which the parole law would be applied to appellant. See Hogan v. State, 440 S.W.3d 211, 218 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd) (citing Igo, 210 S.W.3d at 647-48 (erroneous description of parole eligibility did not cause egregious harm even though the maximum sentence was assessed because the charge contained curative language; parole law was not mentioned in closing argument; and evidence relating to punishment was exceptionally strong)); Stewart, 293 S.W.3d at 857. The charge stated that the jury could not consider "the extent to which good conduct time may be awarded to [appellant]" or "the manner in which the parole law may be applied to [appellant]." The jury was instructed that "such matters come within the exclusive jurisdiction of the Pardon and Parole Division of the Texas Department of Criminal Justice and the Governor of Texas." Thus, the charge error was "effaced by specific instructions not to apply the erroneous language to" appellant. See Stewart, 293 S.W.3d at 857, 860 (stating, "Because the jury was instructed not to consider how the parole law might apply . . . any harm . . . would be the result of a violation of the statute by the jury," and we are to presume that the jury follows the instruction provided by the charge, unless there is indication otherwise); see also Hogan, 440 S.W.3d at 218.
Next, we must assess harm based, in part, on the state of the evidence, the contested issues, and the weight of the probative evidence. See Stewart, 293 S.W.3d at 857. Here, regarding the continuous sexual abuse of a child offense, two children, among others, testified that appellant sexually abused them on multiple occasions in a variety of ways when they were both under the age of fourteen. Thus, the evidence of the nature of appellant's acts in sexually abusing two children for an extended period is sufficient to explain the jury's assessment of punishment without suggesting harm from the charge. See id. Although appellant denied that he committed the offenses, the jury chose to believe the children. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012) ("When the reviewing court is faced with a record supporting contradicting inferences, the court must presume that the jury resolved any such conflicts in favor of the verdict, even if not explicitly stated in the record."); Brooks, 323 S.W.3d at 899. Thus, nothing in the evidence suggests that the jury acted on the erroneous punishment charge language.
The State did not present any evidence at the punishment phase of trial, and appellant was the only witness to testify on his own behalf.
Next, we must assess harm based, in part, on the arguments made by counsel. See Stewart, 293 S.W.3d at 857. Neither the State nor appellant's trial counsel mentioned parole or good conduct time during their arguments. Thus, the issue of parole and good conduct time was not central to the case regarding punishment. See id.
Finally, we are to assess harm, based, in part, on any other relevant information revealed by the record. Appellant was sentenced to fifty years' incarceration for the continuous sexual abuse of a child count, which carried a punishment range of twenty-five years' imprisonment to life. And, there is nothing in the record suggesting that the jury considered parole or good conduct time in assessing the punishment, which is well within the statutory guidelines. See Hogan, 440 S.W.3d at 218. Finally, there is nothing in the record showing that the jury asked any questions regarding parole or good conduct time.
Accordingly, under the stringent standards to show egregious harm, we conclude that the error did not deprive appellant of a fair and impartial trial or affect the very basis of the case, vitally affect a defensive theory, or deprive him of a valuable right. See Igo, 210 S.W.3d at 647 ("First, the parole instruction contained the standard curative language admonishing the jury not to consider the extent to which the parole law might be applied to the defendant. Second, parole was not mentioned by either counsel during argument on punishment. And finally, the evidence relating to punishment was exceptionally strong."); Hogan, 440 S.W.3d at 218; Stewart, 293 S.W.3d at 862. We overrule appellant's seventh issue.
VIII. CONCLUSION
We affirm the trial court's judgment.
JAIME TIJERINA,
Justice Do not publish.
TEX. R. APP. P. 47.2(b). Delivered and filed the 9th day of July, 2020.