Opinion
04-21-00469-CR
11-16-2022
Ruben TALAMANTEZ, Jr., Appellant v. The STATE of Texas, Appellee
DO NOT PUBLISH
From the 218th Judicial District Court, Atascosa County, Texas Trial Court No. 20-05-0135-CRA Honorable Russell Wilson, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
A jury convicted Ruben Talamantez, Jr. of three counts of indecency with a child under section 21.11 of the Texas Penal Code, enhanced by two previous felony convictions. On appeal, Talamantez asserts two issues: (1) he was denied constitutional rights to participate in his own defense-specifically, time to review discovery, assist in the preparation of his defense, and to confer with his counsel prior to trial; and (2) the admission of a witness's testimony violated his due process rights. We affirm.
Background
On May 8, 2020, Talamantez was indicted for two counts of indecency with a child, sexual contact, a second-degree felony and one count of indecency with a child, exposure, a third-degree felony. The indictment outlined two previous felony convictions which allowed for an increased punishment range of 25 to 99 years, or life, for each count.
A two-day jury trial commenced on June 7, 2021. Talamantez was found guilty on all three charges. For each offense, the jury sentenced Talamantez to 99 years and a fine not to exceed $5,000. The trial court determined the sentences would run consecutively. Talamantez appealed.
Right to Prepare and Participate
At the commencement of trial, Talamantez-through retained counsel-and the State announced they were ready. At that time, Talamantez directly raised the following complaints with the trial court:
I talked to my attorneys today. They haven't done their job or come see me in a year and a half and all of a sudden, we're coming to trial without coming to talk to me or show me any evidence or anything. They have not done their job. In the year and a half they have not come see me. Today, they come tell me they're coming to court without even letting me know. They had to go buy me clothes at the store without telling me what was going on. They come and talked to me and investigate me. They didn't ask me any questions and they brought me no documents to see what's going on, what kind of evidence the State has against me. We missed the arraignment and jumped over to this without having a pretrial.
Talamantez's counsel informed the trial court that Talamantez had waived his arraignment and that a pre-trial conference had been conducted with the State. During that conference, the State communicated a plea bargain offer to counsel. That offer was then conveyed to, and rejected by, Talamantez. Talamantez's counsel also informed the trial court that he had made sufficient preparations for the trial.
In his first issue on appeal, Talamantez asserts the trial court abused its discretion in two ways: (1) by denying Talamantez additional time so he could prepare for trial and (2) by failing to appoint Talamantez new counsel "despite obvious conflict between the two." We take each in turn.
Additional Time
Talamantez first asserts the trial court denied his request for a continuance so that he could participate in his own defense. Construing Talamantez's oral complaints as a motion for continuance, such motion was not reduced to writing.
"A criminal action may be continued on the written motion of the State or of the defendant, upon sufficient cause shown; which cause shall be fully set forth in the motion." Tex. Code Crim. Proc. art. 29.03 (emphasis added). "All motions for continuance must be sworn to by a person having personal knowledge of the facts relied on for the continuance." Tex. Code Crim. Proc. art. 29.08. The Court of Criminal Appeals "construe[s] these statutes to require a sworn written motion to preserve appellate review from a trial judge's denial of a motion for a continuance. Thus, if a party makes an unsworn oral motion for a continuance and the trial judge denies it, the party forfeits the right to complain about the judge's ruling on appeal." Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009). Without a written motion, the issue is not preserved for our review. See id. We overrule Talamantez's complaints to the contrary.
New Counsel
Talamantez next asserts the trial court erred in failing to appoint Talamantez new counsel. Although Talamantez made complaints about his retained counsel, he never requested his retained counsel be removed. Nor did he request appointment of new counsel. To preserve error for appeal, a party must "let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it." Layton v. State, 280 S.W.3d 235, 239 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)); Tex.R.App.P. 33.1(a)(1)(A).
Talamantez failed to let the trial judge know he wanted to replace his retained counsel with appointed counsel, why he was entitled to it, and to do so in a way that allowed the trial judge to understand him at a time the trial judge was in a proper position to do something about it. This complaint is therefore not preserved for our review. See Layton, 280 S.W.3d at 239. We overrule Talamantez's first issue.
Admission of Witness Testimony
In his second issue, Talamantez asserts the testimony of a prior complainant was erroneously admitted in violation of his due process rights and under Article 38.37 of the Texas Code of Criminal Procedure. During the State's case-in-chief, the State called Barbara Ann Martinez to testify regarding Talamantez's prior sexual assault conviction. On appeal, Talamantez asserts it was improper for her to testify during the State's case-in-chief because the sexual assault offense is not enumerated under Article 38.37 of the Texas Code of Criminal Procedure.
Prior to trial, the State filed a notice titled "State's Notice of Extraneous Acts Under T.R.E. 404/609 (Prior Bad Acts) and Art. 38.37 of the T.R.C.P." Among other charges, the notice described a sexual assault occurring on July 27, 1993, with Talamantez being convicted on March 21, 1994, on which Talamantez was sentenced to ten years confinement. The notice also contained a witness list identifying Barbara Ann Martinez as the complainant in the 1993 sexual assault case.
Prior to Martinez being called to testify, the trial court held a hearing to determine the admissibility of Martinez's testimony. Outside the presence of the jury, Martinez related that in July of 1993, when she was sixteen years of age, Talamantez forced his way into her home when she was alone with her one-year-old sister and sexually assaulted her. She also testified Talamantez was convicted of the offense and was sentenced to ten years in prison. Talamantez objected as follows:
Your Honor, we would object to this to letting this testimony in, as we feel it is more prejudicial than probative and if it's not going to further the other charge -- no, sorry, the other evidence that has already been presented to this Court and to the jury. And we have already stipulated to the Court that Mr. Talamantez was indeed arrested and pled guilty to and served time for other extraneous offenses, this one included, so we would ask that the Judge deny their motion.
The trial court overruled the objection and found sufficient evidence was presented to warrant a finding that the acts were committed beyond a reasonable doubt and the testimony was admissible under Article 38.37. Martinez then testified to the same facts in front of the jury without further objection from Talamantez.
Due Process
Talamantez first asserts his due process rights were violated by the admission of Martinez's testimony. To the extent Talamantez asserts a due process claim in this court, that complaint was not preserved for appeal because the objection cannot be reasonably construed as having appraised the trial court of a due process objection. See Layton, 280 S.W.3d at 239 ("To preserve error for appeal, a party must 'let the trial judge know what he wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.'"); Tex.R.App.P. 33.1(a)(1)(A). We accordingly overrule Talamatez's due process argument.
Article 38.37 of the Texas Code of Criminal ProcedureTalamantez next asserts the trial court erred in admitting Martinez's testimony because the probative value of the evidence was far outweighed by the prejudice to Talamantez. See Tex. R. Evid. 403. According to Talamantez, the approximately twenty-five year lapse of time between the offenses and different circumstances between the cases resulted in a link too tenuous to support a finding the testimony was more probative than prejudicial.
Article 38.37 authorizes the admission of evidence that a defendant has committed certain separate offenses "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. art. 38.37, § 2. "Essentially, article 38.37 is an evidentiary rule applicable to certain types of sexual abuse cases . . . that supersedes the application of Texas Rule of Evidence 404(b) and makes admissible certain extraneous offense evidence that Rule 404(b) does not." Jeansonne v. State, 624 S.W.3d 78, 95 (Tex. App.-Houston [1st Dist.] 2021, no pet.).
Article 38.37 provides that before the evidence is introduced, the trial judge must (1) determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt; and (2) conduct a hearing out of the presence of the jury for that purpose. Tex. Code Crim. Proc. art. 38.37, § 2-a. The court held such hearing outside the presence of the jury and ruled Martinez's testimony admissible.
We review a trial court's ruling on admissibility for an abuse of discretion. Dabney v. State, 492 S.W.3d 309, 318 (Tex. Crim. App. 2016). We should uphold the trial court's ruling on whether extraneous-offense evidence was admissible if it is within the zone of reasonable disagreement. See id. "Reversing a trial court's decision solely because the appellate court disagrees with it is a misapplication of the abuse-of-discretion standard." See id.
Comparing Martinez's testimony with the testimony of the complainant here, Talamantez's actions were strikingly similar such that the jury could believe Talamantez's actions here were in conformity with his character. In light of Article 38.37, we cannot say the trial court's admission of Martinez's testimony over Talamantez's Rule 403 objection is outside the zone of reasonable disagreement. Therefore, we must uphold the trial court's ruling, and we overrule Talamantez's second issue.
Conclusion
Having overruled Talamantez's issues, the judgment of the trial court is affirmed.