Victorio Nepomuceno v. State ( 2016 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-14-00600-CR
Victorio Nepomuceno, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 71550, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
MEMORANDUM OPINION
A jury convicted appellant Victorio Nepomuceno of aggravated sexual assault. See
Tex. Penal Code § 22.021. The trial court assessed punishment at forty-five years’ imprisonment.
See id. §§ 12.32, 22.021(e). In two issues, appellant contends that the trial court erred in overruling
his objection to a portion of the prosecutor’s closing arguments to the jury. We will affirm the trial
court’s judgment of conviction.
BACKGROUND
The State indicted appellant for “intentionally or knowingly caus[ing] the penetration
of the anus of [H.C.], a child who was then and there younger than 14 years of age, by [appellant’s]
sexual organ.” At trial, the jury heard the testimony of H.C., H.C.’s sister, and a police officer who
investigated the allegation of sexual abuse. H.C. testified that appellant regularly babysat him and
his siblings overnight at appellant’s home when H.C. was eight or nine years old. He testified that
on several occasions, appellant made him engage in sexual acts, including making him get down on
his hands and knees while appellant penetrated his anus with his sexual organ.
H.C.’s sister testified that she was lying in bed one night at appellant’s home when
she saw H.C. on his hands and knees on the floor with appellant on top of him “rap[ing] him.” She
testified that she wanted to say something when she saw what was happening, but she was “very
terrified and scared because [she] didn’t know what was happening to [H.C.],” and her “voice got
stuck in [her] throat.” She testified that she later asked H.C. about what happened, and he insisted
that nothing happened. H.C. testified that he lied to her and denied that anything happened because
he was afraid appellant would hurt her if he found out she knew. H.C.’s sister testified that she told
her younger sister what she saw but then she ultimately convinced herself that she had not seen
anything and that it was only a nightmare.
H.C. testified that sometime after he and his family had moved away from appellant,
his mother came home from a shopping trip with his sisters and asked him whether appellant had
ever done anything to him. He assumed that his sisters told his mother what happened, so he “told
her the truth” about what appellant did to him. H.C.’s sister testified that she was shopping with her
mother and younger sister when her younger sister told her mother what appellant did to H.C. H.C.’s
sister further testified that her mother became very upset and took them home, where she discussed
the situation with H.C. and called the police.
The police officer assigned to the case testified that she interviewed H.C. at the police
station and then arranged for him to be interviewed at the Children’s Advocacy Center (“CAC”),
where employees were trained in interviewing children who were allegedly abused. Appellant was
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ultimately arrested and tried, and a jury found him guilty of aggravated sexual assault. The trial court
then sentenced him to forty-five years’ imprisonment. This appeal followed.
DISCUSSION
Appellant raises two issues on appeal, asserting that the trial court erred in overruling
his objection to statements the prosecutor made during closing arguments because (1) the prosecutor,
“in an effort to bolster the testimony of the complaining witness . . . made reference to evidence that
had never been offered in evidence during the trial,” and (2) the statements “amounted to the
prosecutor offering unsworn testimony.” We review a trial court’s ruling on an objection to
improper jury argument under an abuse-of-discretion standard. See Davis v. State, 329 S.W.3d 798,
825 (Tex. Crim. App. 2010); Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004); Thomas
v. State, No. 05-14-01589-CR, 2016 WL 259761, at *6 (Tex. App.—Dallas Jan. 21, 2016, pet. filed)
(mem. op., not designated for publication). “The trial court does not abuse its discretion unless its
determination lies outside the zone of reasonable disagreement.” Martinez v. State, 327 S.W.3d 727,
736 (Tex. Crim. App. 2010).
The statements appellant refers to pertain to the two interviews of H.C., one of which
occurred at the police station and the other of which was videotaped at the CAC. Neither the State
nor the defense offered the videotaped interview as evidence at trial, and the prosecutor made the
following statements during closing arguments:
On April 2nd of 2013, [H.C.] talked to [the police officer] at the Nolanville Police
Department. And she asked him basically what happened, and he told her. And then
she made a report. You know, [defense counsel] is a fine lawyer. If there was some
kind of major discrepancy in what she—you know, what he told her then, don’t you
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know you would have heard about it? And then [the police officer] set up a meeting
with the Tarrant County Child Advocacy Center where [H.C.] went and was
interviewed on camera.
And, you know, if the story was changed, don’t you know that the first thing that
[defense counsel] would be doing is, look how the story has changed. Let’s see the
video.
After the prosecutor made the above statements, defense counsel stated, “Judge, I’m
going to object to that. That video wouldn’t have—and I object to that.” The trial court overruled
the objection. The State contends that appellant waived error on both issues by failing to make a
specific objection that comported with his complaints on appeal. An objection must be sufficiently
specific to make the trial court aware of the complaint and must comport with the complaint made
on appeal in order to be preserved for review. See Tex. R. App. P. 33.1(a) (objection must state
grounds for ruling sought from trial court with sufficient specificity to make trial court aware of
complaint unless specific grounds are apparent from context); Clark v. State, 365 S.W.3d 333, 339
(Tex. Crim. App. 2012) (“The point of error on appeal must comport with the objection made at
trial.”); Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006) (general or imprecise
objection suffices to preserve error “only if the legal basis for the objection is obvious to the court
and to opposing counsel”). Because appellant made only a general objection to the statements at trial
and did not mention the complaints he raises on appeal, we conclude that he waived error on both
issues. Accordingly, we do not address the merits of appellant’s claims. See Wilson v. State,
311 S.W.3d 452, 473–74 (Tex. Crim. App. 2010) (per curiam) (op. on reh’g) (“[I]t is the duty of the
appellate courts to ensure that a claim is preserved in the trial court before addressing its merits.”).
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Even if appellant had not waived error, a review of the record shows that the
prosecutor’s statements, if improper, were harmless. Improper jury argument is considered
non-constitutional error. See Threadgill v. State, 146 S.W.3d 654, 666 (Tex. Crim. App. 2004);
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). Non-constitutional error that does
not affect a defendant’s substantial rights must be disregarded. See Tex. R. App. P. 44.2(b). A
substantial right is affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In
determining whether a defendant’s substantial rights were affected by improper jury argument, courts
should balance the following three factors: (1) severity of the misconduct (the magnitude of the
prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct (the
efficacy of any cautionary instruction by the judge); and (3) the certainty of conviction absent the
misconduct (the strength of the evidence supporting the conviction). See Mosley, 983 S.W.2d at 259.
Improper jury argument “will not constitute reversible error unless, in light of the record as a whole,
the argument is extreme or manifestly improper, violative of a mandatory statute, or injects new facts
harmful to the accused into the trial proceeding.” Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.
Crim. App. 2000). “The remarks must have been a willful and calculated effort on the part of the
State to deprive appellant of a fair and impartial trial.” Id.
Here, the inference suggested by the prosecutor in his statements—that there was no
difference between what H.C. said in his interview at the police station and his later videotaped
interview at the CAC—was already affirmatively put into evidence during the testimony of the police
officer who interviewed H.C. Specifically, the police officer testified that she interviewed H.C. at
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the police station and then arranged for him to be interviewed again at the CAC. She testified that
the CAC interview was videotaped and that she reviewed the videotape after the CAC sent
her a copy. The following exchanges then occurred during the police officer’s direct and
cross examination:
Prosecutor: [W]as there anything on [the videotape] that was different
than what he told you?
Police officer: No, not at all.
....
Defense counsel: At some point, did you say that there was some difference
between what [H.C.] said to you and what he said on the
[videotaped] interview?
Police officer: No, there was no difference.
The admission of evidence and jury argument is harmless when the same evidence or
argument was offered and admitted elsewhere without objection. See Mayes v. State, 816 S.W.2d 79,
88 (Tex. Crim. App. 1991) (“[T]he admission of [one witness’s] testimony without objection
rendered the admission of [a second witness’s] testimony harmless because it established
substantially the same evidence.”); Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App. 1986)
(“Inadmissible evidence can be rendered harmless if other evidence at trial is admitted without
objection and it proves the same fact that the inadmissible evidence sought to prove.”); Foreman
v. State, No. 08-13-00042-CR, 2015 WL 129025, at *5 (Tex. App.—El Paso Jan. 9, 2015, no pet.)
(not designated for publication) (prosecutor’s argument to jury was harmless where prosecutor made
similar argument later in closing arguments with no objection).
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Further, the strength of the evidence supporting appellant’s conviction also supports
a finding that the prosecutor’s statements, if improper, were harmless. Specifically, H.C. testified
in detail about numerous sexual assaults, including appellant “inserting his penis into [H.C.’s] anus”
and “raping [him].” H.C.’s sister testified that she was in bed one night when she saw H.C. on his
hands and knees and saw appellant “get on top of him and rape him.” The defense argued during
closing arguments that H.C. and his sister were not credible but did not provide any arguments as
to why they might fabricate the allegations.
Considering that the police officer testified affirmatively with respect to the same
evidence that the prosecutor suggested as an inference in closing arguments, and considering the
strength of the evidence supporting appellant’s conviction, we conclude that the prosecutor’s
statements, if improper, were harmless. See Tex. R. App. P. 44.2(b); Mosley, 983 S.W.2d at 259;
Mayes, 816 S.W.2d at 88; Anderson, 717 S.W.2d at 628; Foreman, 2015 WL 129025, at *5.
Given the foregoing, we overrule appellant’s two issues.
CONCLUSION
Having overruled appellant’s issues, we affirm the trial court’s judgment
of conviction.
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_______________________________
Cindy Olson Bourland, Justice
Before Justices Puryear, Pemberton, and Bourland
Affirmed
Filed: August 10, 2016
Do Not Publish
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