Frederick Onfri v. State ( 2015 )

Affirmed and Memorandum Opinion filed January 27, 2015.
In The
Fourteenth Court of Appeals
NO. 14-13-00596-CR
FREDERICK ONFRI, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1391851
MEMORANDUM OPINION
Appellant, Frederick Onfri, was indicted for sexual assault of a child and a
separate charge of aggravated sexual assault of the same child. Approximately one
year later, appellant was re-indicted on a different charge of aggravated sexual
assault of the same child. A jury convicted appellant of the third charge and
assessed punishment of fifty-five years’ confinement. The prior two charges were
dismissed upon the conviction which forms the basis for this appeal.
In three issues, appellant contends (1) he was not provided a written copy of
the indictment in violation of the Texas Constitution and the Texas Code of
Criminal Procedure; (2) the State failed to timely comply with a discovery order,
thus violating his right to due process and a fair trial; and (3) the trial court erred in
denying him the opportunity to impeach a witness. We affirm.
II. ANALYSIS
A. Receipt of Indictment
In October 2012, appellant was indicted on two different charges of
committing sexual assault of a child and released on bond. These two cases were
consolidated and set for trial in March 2013.1 He was indicted on June 18, 2013,
on another charge of committing sexual assault of the same child and arraigned six
days later. Appellant waived his right to ten days to prepare for the third charge2
and trial commenced on the date of arraignment.
In his first issue, appellant complains he did not receive a written copy of the
indictment in the third case. See Tex. Const. art. I § 10; Tex. Code Crim. Proc.
Ann. art. 1.05, 25.01–02 (West 2013).3 It is undisputed the record contains no writ
or sheriff’s return for the indictment filed June 18. The record reflects that all
motions filed in the two earlier cases were transferred to the third case, and the
1
These charges were ultimately dismissed after appellant’s conviction in the instant
case.
2
“In cases where the defendant is entitled to be served with a copy of the indictment, he
shall be allowed the ten days’ time mentioned in the preceding Article to file written pleadings,
after such service.” See Tex. Code Crim. Proc. Ann. art. 27.11–12 (West 2013).
3
“In all criminal prosecutions the accused shall have . . . the right to demand the nature
and cause of the accusation against him, and to have a copy thereof.” See Tex. Const. art. I § 10.
“The accused shall have . . . the right to demand the nature and cause of the accusations against
him, and have a copy thereof.” See Tex. Code Crim. Proc. Ann. art. 25.01. “In every case of a
felony . . . the clerk of the Court . . . shall immediately make a certified copy. . . and deliver such
copy to the sheriff” who is commanded to deliver to the accused a copy of the indictment and
return the writ to the clerk and show how it was executed.” See id. art. 25.02.
2
State advised appellant that the specific act with which he was charged was
outlined in the probable-cause statement included in the clerk’s file.
Three days before trial, appellant filed a motion in limine4 stating:
Defendant has been indicted for three separate offenses against the
same complainant and the State, pursuant to Texas Penal Code sec.
3.03 has moved to consolidate them into one trial. . . . [T]he defendant
makes this motion in limine to exclude evidence, other than evidence
of the specific allegations in the presented indictments, that the
defendant abused the complainant or committed any bad acts against
the complainant.”
Also three days before trial, the trial court’s docket entry notes:
The Presiding Judge placed on the record that the defense waived
their 10 days notice and we will be proceeding on the new cuse [sic]
number 1391851. The defense and the defendant made known that
they wished to move forward. Defense made an oral motion to ove
[sic] al [sic] motions to the new cause number and it was granted by
the court. . . . The Court ordered the State to inform the defense by
tomorrow (Sat, July 22, 2013) on which acts will be discussed I [sic]
reference to the case.
There is no indication in the record that appellant demanded he be served
with a copy of the third indictment, nor is there any indication that appellant
objected to the lack of service. Counsel for appellant, and appellant himself, told
the trial court they were “ready . . . for any of the three charges or all of the three
charges.” Additionally, appellant did not seek a continuance of the June trial
setting on the third charge.
Thus, because appellant did not present timely, specific objections to the
trial court and obtain an adverse ruling, he has waived appellate review of his
complaint. See Tex. R. App. P. 33.1; Fuller v. State, 253 S.W.3d 220, 232 (Tex.
Crim. App. 2008) (holding constitutional and statutory rights may be forfeited
4
Appellant’s motion in limine was filed in all three cause numbers.
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where appellant does not object. We overrule appellant’s first issue.
B. Compliance with Discovery Order
Appellant asserts the State (1) did not comply with the trial court’s discovery
order which, inter alia, required the State to give notice of all extraneous offenses
pursuant to Texas Rule of Evidence 404(b), and (2) did not respond to requests for
notice of extraneous offenses. See Tex. R. Evid. 404(b). Appellant’s complaints
appear to be directed to three categories of extraneous offenses: (1) extraneous
sexual misconduct with complainant; (2) statements made by the complainant
concerning appellant’s threat to harm complainant’s mother; and (3) appellant’s
statements to other witnesses admitting sexual abuse of the complainant.
Appellant contends the trial court erred by admitting evidence of extraneous
offenses of which the State failed to provide notice.
We review the trial court’s decision regarding the admission or exclusion of
evidence under an abuse-of-discretion standard. Oprean v. State, 201 S.W.3d 724,
726 (Tex. Crim. App. 2006). We uphold the trial court’s ruling if it was within the
zone of reasonable disagreement. Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim.
App. 2007); Kacz v. State, 287 S.W.3d 497, 501–502 (Tex. App.—Houston [14th
Dist.] 2009, no pet.).
The record reflects that the State filed a Notice of Intent to Use Extraneous
Offenses and Prior Convictions and a Notice of Intention to Use Child Abuse
Victim’s Hearsay Statement. These filings outline numerous instances of
extraneous misconduct.
In a hearing before the jury was impaneled, the State informed the trial court
it would present evidence of four instances of extraneous sexual misconduct with
the complainant, all of which were described in the probable-cause statements on
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file, and the State relayed it was relying on all information contained in the
probable-cause statements. At the same pre-trial hearing, appellant complained
that the State’s notice of the four instances was untimely, and there was
insufficient opportunity to prepare. However, the notices were timely because they
were filed with respect to the two prior charges and appellant and the State agreed
that matters filed in those prior cases were considered filed in this third case.
Additionally, counsel for appellant stated he had reviewed the file, which
contained the probable-cause statement, as well as the State’s notice, thereby
acknowledging the State provided notice.
Next, appellant complains the State did not provide notice of appellant’s
alleged threat to hurt complainant’s mother if complainant mentioned the sexual
abuse to anyone.5 However, the record reflects the State’s Notice of Intention to
Use Child Abuse Victim’s Hearsay Statement included this comment.
Finally, appellant complains the State did not provide notice of its intent to
use appellant’s admissions to four witnesses. These witnesses testified over
appellant’s objection that appellant was crying, remorseful and guilty about the
situation with complainant, that he stated he had not forced her to engage in sexual
conduct, and he stated the two had prayed over the instances of sexual misconduct.
At the pre-trial hearing, the State informed the trial court of its intent to offer this
testimony. Counsel for appellant conceded he had “done a thorough job of trying
to interview” many of the witnesses. The trial court ruled it would allow general
statements but would not allow specific statements concerning the sexual act for
which appellant was on trial. The record reflects appellant objected to the
5
In his brief, appellant claims the State did not provide notice of its intent to use
complainant’s allegation that appellant threatened her if she reported appellant’s sexual abuse.
The record does not contain evidence that appellant threatened her—only that she was scared of
appellant and “pretty sure” he would have hurt her if she reported the abuse.
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testimony of the witnesses when the State questioned each regarding appellant’s
statements to them. The trial court ruled that as long as the testimony was of a
general nature, it would be admitted.
Apparently, appellant contends that his admissions regarding general sexual
misconduct with complainant constituted admission of the extraneous sexual
misconduct with complainant. However, as discussed above, he was provided
timely notice of the extraneous general misconduct with complainant.
We hold the State did not violate the trial court’s discovery order, and did
not thwart appellant’s preparation for, or presentation of, its defense. See Oprean,
201 S.W.3d at 728. Therefore, we overrule appellant’s second issue.
C. Refusal to Allow Impeachment of Witness
In this third issue, appellant challenges the trial court’s refusal to allow
counsel to impeach one of the State’s witnesses with a specific instance of, what
appellant characterizes as, “unadjudicated misconduct.” During cross-
examination, the witness was asked his age (thirty-five), and he testified he has
been married thirteen years. When asked the age of his wife at the time of their
marriage, the State objected; the trial court initially overruled the objection. The
witness responded, “I plead the Fifth.” Appellant objected.6
Outside of the jury’s presence, appellant asserted the question was relevant
because the witness was one of the witnesses to whom appellant had admitted guilt
and appellant understood the wife of the witness was fifteen at the time of their
6
On appeal, appellant urges this line of questioning was relevant given Norris’s
testimony about complainant and the Facebook chat information he discovered. In addition,
appellant contends this question was relevant because Norris had explained to the complainant
his home and his family was a safe place for her. Appellant did not proffer this rationale to the
trial court. Where the complaint on appeal does not comport with an objection made at trial, the
error is not preserved for appellate review. See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim.
App. 2002).
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marriage. The State argued the age of the witness’ wife was irrelevant, not
probative, and prejudicial. Appellant argued the witnesss’ invocation of his Fifth
Amendment right to refuse to testify on this point is a violation of appellant’s Sixth
Amendment right to confront the witness. See U.S. Const. amend. V, VI.
Appellant moved for mistrial. The trial court then sustained the State’s objection,
refused to allow the alleged impeachment, and denied appellant’s motion for
mistrial. Appellant also requested the trial court instruct the jury to disregard the
witness’ answer, which the trial court agreed to do. However, appellant retracted
that request, and the trial court did not instruct the jury.
Appellant’s cross-examination of the witness was directed solely to the issue
of his wife’s age at the time they were married—the focus was that his wife was a
minor at the time. Appellant argued in the trial court this specific conduct was
admissible to show the witness’ bias and question his credibility. On appeal,
appellant makes no complaint of bias. He suggests the proferred testimony was
relevant because the witness created a “false impression” by testifying that
appellant’s conduct was “despicable” and appellant “should have known better.”
We conclude the trial court did not abuse its discretion by determining the
witness’ prior sexual relationship with his wife was irrelevant to attacking his
credibility or his opinion of appellant’s conduct with the complainant. Thus, we
overrule appellant’s third issue.
Having overruled all of appellant’s issues, we affirm.
/s/ John Donovan
Justice
Panel consists of Justices Boyce, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).
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