Jeremy Hernandez v. State ( 2016 )

Affirmed and Memorandum Opinion filed August 9, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00341-CR
JEREMY HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Cause No. 1389372
MEMORANDUM OPINION
Jeremy Hernandez appeals his conviction for aggravated assault. See Tex.
Penal Code Ann. §22.02(a)(1) (Vernon 2011). He contends the trial court abused
its discretion by recessing the hearing on a motion to adjudicate guilt for 90 days
after Texas Rule of Evidence 614 had been invoked. According to appellant, this
recess allowed witnesses to confer in violation of Rule 614. We affirm.
BACKGROUND
Testimony during the hearing described the series of events underlying this
appeal. The complainant, Rosalinda Alonzo, had been dating appellant on and off
for several years when they went out on the evening of June 21, 2014. Appellant
was on probation at the time for threating the complainant with a knife in May
2013. One of his probation terms required appellant to avoid contact with
complainant.
After drinks, the two went back to the complainant’s apartment and
appellant passed out on the bathroom floor. The complainant then looked through
appellant’s phone and saw he had communicated with her teenage niece on
Facebook. She woke him up and told him to leave her apartment.
The complainant’s daughter, Melissa Diaz, stayed at the complainant’s
apartment that evening. Diaz was asleep when the complainant and appellant
arrived; she woke up to the complainant screaming and yelling. Diaz saw
appellant asleep on the bathroom floor when she looked down the hallway. She
heard the complainant yell at appellant because he had been communicating with
the complainant’s teenage niece.
Appellant got up from the bathroom floor and started arguing with the
complainant; then he grabbed her hair and tried to hit her. Appellant hit Diaz twice
in the face when she ran between them. Appellant said “don’t call the cops” and
stated he knew what was going to happen. Diaz told him, “No one is going to call
the cops if you just leave right now.” When appellant refused to leave, Diaz
grabbed her phone and tried to go outside but appellant locked the apartment door.
Appellant told Diaz and the complainant they could not leave and threatened to kill
them. Diaz managed to unlock the door and flee when appellant was distracted.
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The complainant also fled the apartment and called 9-1-1. Appellant
followed and hit the complainant while she was on the phone. Appellant did not
stop hitting the complainant until the police arrived. Appellant then went back
inside the complainant’s apartment.
Diaz was in the front parking lot of the apartment complex when police
arrived and directed police to the complainant’s apartment. The complainant was
outside her apartment; she had blood on her shirt and her face, her face was red and
slightly swollen, and her lip was injured. Paramedics treated her on the scene.
Appellant was inside the apartment and opened the door when police knocked.
Appellant appeared to be intoxicated but was not injured. Police took appellant
into custody.
The State filed a motion to adjudicate appellant’s guilt on June 30, 2014, and
a hearing on the motion to adjudicate began on December 5, 2014. On direct
examination, Diaz stated that she did not remember if she was struck with a slap or
a punch.
After Diaz’s direct examination concluded but before her cross-examination
began, the trial court continued the hearing until December 15, 2014, so appellant’s
trial counsel could obtain and review a written statement Diaz made to the police.
On January 9, 2015, the hearing was reset again for February 6, 2015. On January
26, 2015, the hearing was reset again for March 5, 2015.
The hearing resumed on March 4, 2015. During cross-examination at the
resumed hearing, Diaz stated that she was struck with a slap rather than a punch.
After hearing evidence presented at the hearing, the trial court found that appellant
violated the terms of his probation; adjudicated appellant’s guilt; and sentenced
him to confinement for ten years. Appellant timely appealed.
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ANALYSIS
Appellant contends in his sole issue that the trial court abused its discretion
by recessing proceedings on the motion to adjudicate his guilt for 90 days after
(1) Texas Rule of Evidence 614 had been invoked; and (2) Diaz already had
testified on direct examination.
Rule 614 provides for the exclusion of witnesses from the courtroom during
trial. See Tex. R. Evid. 614. This rule prevents the testimony of one witness from
influencing the testimony of another. Russell v. State, 155 S.W.3d 176, 179 (Tex.
Crim. App. 2005). Once Rule 614 is invoked, witnesses are instructed by the court
that they cannot converse with one another or with any other person about the case
except with court permission. Tex. Code Crim. Proc. Ann. art. 36.06 (Vernon
2007); Russell, 155 S.W.3d at 180.
Appellant contends the trial court violated Rule 614 when it continued the
hearing after Diaz completed her testimony on direct examination. According to
appellant, the 90-day recess allowed Diaz to confer with the complainant in
violation of Rule 614 before the hearing resumed.
We apply an abuse of discretion standard to review a trial court’s action
under Rule 614. See Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App. 1996);
Martinez v. State, 186 S.W.3d 59, 65 (Tex. App.–Houston [1st Dist.] 2005, pet.
ref’d). A Rule 614 violation does not result in automatic reversal. Webb v. State,
766 S.W.2d 236, 240 (Tex. Crim. App. 1989). Appellant also must show harm.
See Bell, 938 S.W.2d at 50; Archer v. State, 703 S.W.2d 664, 666 (Tex. Crim. App.
1986); Rodriguez v. State, 772 S.W.2d 167, 168-69 (Tex. App.—Houston [14th
Dist.] 1989, pet. ref’d); Collins v. State, No. 14-13-00449-CR, 2014 WL 1778248,
at *3 (Tex. App.—Houston [14th Dist.] May 1, 2014, pet. ref’d) (mem. op., not
designated for publication). Harm is established by showing that (1) the witness
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actually conferred with or heard testimony of other witnesses, and (2) the witness’s
testimony contradicted the testimony of a witness from the opposing side or
corroborated testimony of a witness she had conferred with or heard. See Bell, 938
S.W.2d at 50; Archer, 703 S.W.2d at 666; Collins, 2014 WL 1778248, at *3.
Appellant argues that, “although there is no direct evidence in the record that
Complainant and Diaz actually conferred with one another, it would be
unreasonable to presume that the mother and daughter had not discussed the case”
while the hearing was recessed. According to appellant, (1) “the trial court
instructed the witnesses not to confer for a mere 10 days;” (2) the trial court “then
granted continuances—none of which were requested by Appellant;” and (3) when
Diaz resumed her testimony after the recess, she made an “unprompted partial
recantation of the allegation that Appellant hit her with a closed fist.” Appellant
contends this “partial recantation” is “indicative of her testimony having been
influenced during that time.” The State counters that appellant waived this
complaint because he did not object in the trial court.
To preserve an argument for appellate review, the record must show that
appellant made a specific and timely objection in the trial court and the trial court
ruled on the objection. See Tex. R. App. P. 33.1(a); Lovill v. State, 319 S.W.3d
687, 691 (Tex. Crim. App. 2009); Leal v. State, 469 S.W.3d 647, 649 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d). Here, appellant did not object to the 90-day
recess of the hearing or to Diaz’s testimony after the recess. Further, appellant
never objected to any continuances in the trial court. Therefore, appellant did not
preserve his argument for appellate review. See Lovill, 319 S.W.3d at 692; Leal,
469 S.W.3d at 649.
Appellant contends he did not need to object below because the trial court’s
error constituted a due process violation. Appellant cites Trifovesti v. State, 759
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S.W.2d 507 (Tex. App.—Dallas 1988, pet. ref’d), to support an assertion that he
can raise a due process complaint for the first time on appeal. Trifovesti does not
support this assertion because the court held that, in order to preserve error for
appeal, an appellant must have made “some type of due process objection at the
time the trial court continued the hearing, at the time probation was actually
revoked, or at the time sentence was imposed.” Id. at 508. The appellant in
Trifovesti made a timely and specific due process objection and therefore preserved
error for appeal. Id. (“We conclude that Trifovesti’s complaint, in the context that
she made it, sufficiently apprised both the State and the court of her due process
objection.”). Appellant raised no such complaint in the trial court.
In any event, no blanket principle allows due process objections to be raised
for the first time on appeal. See Clark v State, 365 S.W.3d 333, 340 (Tex. Crim.
App. 2012) (“Appellant forfeited his denial-of-due-process claim by not properly
preserving error at trial.”); Rogers v. State, 640 S.W.2d 248, 265 (Tex. Crim. App.
[Panel Op.] 1981) (op. on second motion for reh’g) (procedural due process
complaints are subject to waiver); Norton v. State, 434 S.W.3d 767, 772 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (concluding that appellant failed to
preserve error because appellant did not voice her due process objection in the trial
court); Kappel v. State, 402 S.W.3d 490, 496 (Tex. App.—Houston [14th Dist.]
2013, no. pet.) (concluding that, because appellant failed to make a due process
objection in the trial court, it was not preserved for appellate review).
Even assuming for argument’s sake that appellant preserved his argument
for appeal, it is without merit.
The record does not support appellant’s contention that “the trial court
instructed the witnesses not to confer for a mere 10 days.” At the December 5,
2014 hearing, the State could not produce Diaz’s written statement to police for
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appellant’s cross-examination of Diaz. The trial court stated that appellant was
“entitled to [the statement] for cross-examination,” recessed the hearing, and
instructed the witnesses as follows:
THE COURT: We are going to continue this hearing. At this point it
looks like we will continue it on December the 15th. Ma’am, you are
ordered to return on December 15th to continue your testimony.
* * *
THE COURT: Okay, folks, you-all have been sworn in as witnesses.
To address other legal matters, we are going to continue the hearing in
about a week and a half.
You are still under the Rule, as I explained before. What that
means is that you are not allowed to discuss the subject matter of this
hearing with anybody except the attorneys in the case. It means not
discuss it amongst yourselves, with other people outside these
proceedings, with the defendant, with anybody, all right? -- nobody,
except the lawyers in the case. Does everybody understand that
instruction?
The witnesses responded, “Yes.” This instruction does not support appellant’s
contention that the trial court placed a 10-day limit on its instruction telling the
witnesses not to confer among themselves.
The record also does not support appellant’s speculation that Diaz and her
mother conferred during the recess. During the December 5, 2014 hearing, the
State asked Diaz during direct examination: “Do you know if it was a slap or a
punch?” Diaz answered that she did not remember whether she was struck with a
slap or punch. When the hearing resumed on March 4, 2015, Diaz stated on cross-
examination as follows: “Well, I said closed. I was mistaken. It had to have been
an open because there really wasn’t that damage like my mother.” This testimony
does not amount to a “partial recantation.” Nothing in the record indicates that the
complainant and Diaz conferred during the recess. Diaz testified at the March 4,
2015 hearing that she had not talked to her mother about what happened.
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Based on the record before us, there is no evidence that the complainant and
Diaz conferred. Therefore, appellant cannot show harm. See Bell, 938 S.W.2d at
50; Archer, 703 S.W.2d at 666.
We overrule appellant’s sole issue.
CONCLUSION
We affirm the judgment of the trial court.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Christopher and Jamison.
Do Not Publish — Tex. R. App. P. 47.2(b).
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