James Alba v. State ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-13-00345-CR
James Alba, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BLANCO COUNTY, 424TH JUDICIAL DISTRICT
NO. CR01119, THE HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant James Alba guilty of multiple child sexual abuse
offenses—five counts of aggravated sexual assault of a child and three counts of sexual assault of
a child—for sexually abusing his daughter, R.N.D., throughout her childhood.1 See Tex. Penal Code
§§ 22.011, 22.021. The trial court assessed appellant’s punishment at confinement for 99 years in
the Texas Department of Criminal Justice for each of the aggravated-sexual-assault counts and
20 years for each of the sexual-assault counts, ordering some of the sentences to be served
1
The jury heard evidence that from the age of four until R.N.D. left appellant’s home at age
17, appellant perpetrated various sexual acts against R.N.D. on numerous occasions, including
making her perform oral sex on him, penetrating her sexual organ with his penis, and rubbing her
anus with his penis. He referred to the sexual acts as “doing a favor for [him],” and R.N.D. had to
“do a favor” in order to receive things (such as toiletries and clothes) or to gain permission to do
things (such as play with friends or go to school functions). Because the parties are familiar with
the facts of the case, its procedural history, and the evidence adduced at trial, we do not recite them
in this opinion except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See Tex. R. App. P. 47.1, 47.4.
cumulatively. See id. §§ 12.32, 12.33. On appeal, appellant complains about the denial of his
motion to dismiss for lack of a speedy trial, the denial of his motion for continuance, the violation
of his right to present a complete defense, the admission of “bolstering” testimony, and the failure
of the trial court to conduct a hearing outside the presence of the jury before admitting expert
testimony. Finding no reversible error, we affirm the trial court’s judgments of conviction for
Counts Six, Seven, and Eight. However, through our own review of the record, we have found
non-reversible error in the remaining judgments of conviction. We will modify these judgments to
correct the error and, as modified, affirm the trial court’s judgments of conviction for Counts One,
Two, Three, Four, and Five.
DISCUSSION
Speedy Trial
In his first point of error, appellant asserts that he was denied his right to a speedy trial
in violation of the federal and state constitutions, and that the trial court erred in denying his motion
to dismiss the indictment based on the speedy trial violation. See U.S. Const. amends. VI, XIV;
Tex. Const. art. I, § 10.
We analyze a speedy trial claim on an ad hoc basis by applying a fact-specific
balancing test. Barker v. Wingo, 407 U.S. 514, 530 (1972); Henson v. State, 407 S.W.3d 764, 767
(Tex. Crim. App. 2013), cert. denied, 134 S. Ct. 934 (2014). Whether raised under the federal or
state constitution, we weigh and balance four factors: the length of the delay, the reason for the
2
delay, the defendant’s assertion of his right, and the prejudice inflicted by the delay.2 Barker,
407 U.S. at 530; Henson, 407 S.W.3d at 767. No single factor is necessary or sufficient to establish
a violation of the right to a speedy trial; instead, we must weigh the conduct of the prosecution and
defendant using a balancing test of the four factors. Barker, 407 U.S. at 530, 533; Cantu v. State,
253 S.W.3d 273, 281 (Tex. Crim. App. 2008). The State must satisfy its burden of justifying the
length of the delay while the defendant must meet his burden of proving the assertion of the right and
showing prejudice. Cantu, 253 S.W.3d at 280. The four factors are related, and we apply them
“with common sense and sensitivity to ensure that charges are dismissed only when the evidence
shows that a defendant’s actual and asserted interest in a speedy trial has been infringed.” Id. at 281.
Review of the individual factors necessarily involves fact determinations and legal conclusions, but
the balancing test as a whole is a purely legal question. Id. at 282. In our review, we apply a
bifurcated standard in which we review the trial court’s determination of historical facts for an abuse
of discretion, but review de novo the court’s application of the law to the facts. Id. at 282; Zamorano
v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002).
Length of Delay
The length of the delay is the triggering mechanism for an analysis of the Barker
factors. Barker, 407 U.S. at 530; Zamorano, 84 S.W.3d at 648. The length of the delay is measured
from the time the defendant is arrested or formally accused. Barker, 407 U.S. at 530; Harris v. State,
2
Although the right to a speedy trial under the Texas Constitution exists independently of
the Sixth Amendment guarantee, claims of denial of the state speedy trial right are analyzed under
the same four Barker factors. Cantu v. State, 253 S.W.3d 273, 280 n.16 (Tex. Crim. App. 2008);
Harris v. State, 827 S.W.2d 949, 956 (Tex. Crim. App. 1992).
3
827 S.W.2d 949, 956 (Tex. Crim. App. 1992). Texas courts have generally held that a delay of eight
months or more is “presumptively prejudicial” and will trigger a speedy trial analysis. See
Zamorano, 84 S.W.3d at 649 n.26. In this case, appellant was indicted on November 8, 2004 and
his jury trial began on April 8, 2013. The delay of eight years and five months is sufficiently lengthy
to trigger a speedy trial analysis under Barker.
Reason for Delay
Once the length of time is found to be presumptively prejudicial, the burden of
justifying the delay falls on the State. Cantu, 253 S.W.3d at 280. Different weights are assigned to
different reasons for delay. Barker, 407 U.S. at 531. A deliberate attempt to delay trial to hamper
the defense is weighed heavily against the State. Id.; Zamorano, 84 S.W.3d at 649. More neutral
reasons, such as negligence or crowded dockets, are also weighed against the State, but less heavily
than deliberate delay. Barker, 407 U.S. at 531; Zamorano, 84 S.W.3d at 649. Valid reasons, such
as a missing witness or delay caused by plea negotiations, are not weighed against the State at all.
Barker, 407 U.S. at 531; State v. Munoz, 991 S.W.2d 818, 824 (Tex. Crim. App. 1999). Finally, if
an accused’s own actions constitute the majority of the reason for the delay in trial, this factor weighs
against his speedy trial claim. Starks v. State, 266 S.W.3d 605, 611 (Tex. App.—El Paso 2008, no
pet.). In fact, delay that is attributable in whole or in part to the defendant may constitute a waiver
of the speedy trial claim. See Barker, 407 U.S. at 528–30 (delay attributable to defendant constitutes
waiver of speedy trial); Munoz, 991 S.W.2d at 822 (citing Barker, 407 U.S. at 528–30); see also
Dickey v. Florida, 398 U.S. 30, 48 (1970) (Brennan, J., concurring) (defendant may be “disentitled
to the speedy-trial safeguard in the case of a delay for which he has, or shares, responsibility”).
4
There is no evidence of deliberate delay in this case. In fact, the same month that
appellant was indicted, the State filed a formal announcement of ready for trial requesting a speedy
trial. Following that, the initial delay appears to have been because of a crowded court docket in that
the first trial setting on April 25, 2005 was continued by the court. The case was then set for trial
on August 15, 2005 and again on October 17, 2005. Both trial settings were continued on
appellant’s request.3 On May 31, 2006, the parties and the court signed an agreed order of
incompetency, and appellant was ordered into a treatment facility. For whatever reason, appellant
never reported to the sheriff for transport and was never transported to the treatment facility.
The record reflects that a subsequent status hearing set for October 12, 2007 was reset to
October 26, 2007. The record does not reflect whether the status hearing was held. As the
prosecutor stated at the hearing on appellant’s motion to dismiss, after appellant was found to be
incompetent, the case “fell off the docket.”
The case returned to the court’s docket in February 2012 after inquiries about the
status of the case were received from legal aid representatives providing housing assistance to
appellant. The case was then set for several status hearings, which the court was unable to conduct
because appellant was indisposed.4 In April 2012, the parties again agreed that appellant was
3
The record demonstrates that during this time the State was actively preparing for trial in
that the prosecutor filed several notices (of the State’s witnesses and of extraneous offenses) before
the April trial setting and supplemental notices before the August trial setting.
4
At the hearing on appellant’s motion to dismiss, the trial judge lamented that “the last few
times that we were supposed to have a hearing, we couldn’t due to mysterious illnesses,
hospitalizations, and/or comatose nature.” The judge stated that the record is “very clear that the
reasons why there hasn’t been a speedy trial, at least lately, has everything to do with the
conspicuous absence of the defendant.” Apparently, at one scheduled hearing appellant exited the
courtroom via EMS. Then, appellant was hospitalized the day before the subsequently rescheduled
5
incompetent to stand trial, and the court entered a “judgment on uncontested incompetency.” A
subsequent competency evaluation in May 2012 determined that appellant was competent to stand
trial.5 In August 2012, the case was set for trial on October 29, 2012. On the day of trial, appellant
filed a Motion to Dismiss for Lack of Speedy Trial. The record does not reflect whether the motion
was discussed prior to the start of trial or even brought to the court’s attention. The record does
reflect, however, that the trial court declared a mistrial after the parties agreed to postpone the trial
when appellant kept falling asleep during jury selection.6 The case was reset for trial on
March 18, 2013. At a pretrial hearing on February 15, 2013, appellant filed a motion seeking a
continuance of the March 18th trial setting, which was denied. At a pretrial hearing on
March 1, 2013, the court heard appellant’s motion to dismiss for lack of speedy trial and denied the
hearing. No medical records were produced to the court to excuse or explain appellant’s absence.
5
The record reflects that appellant was twice declared incompetent to stand trial: in
May 2006 and again in April 2012. Nothing in the record demonstrates that appellant was restored
to competency in the interim, and it was only at the May 2012 evaluation that he was determined
competent to stand trial. In his brief, appellant argues that his trial counsel was unable to assert his
right to a speedy trial due to appellant’s incompetence to stand trial, and thus the time related to his
incompetence should not be held against him. We do not necessarily disagree with this position.
However, by the same token, the delay resulting from appellant’s incompetence should not be held
against the State. See Purchase v. State, 84 S.W.3d 696, 698 (Tex. App.—Houston [1st Dist.] 2002,
pet. ref’d) (“A defendant’s due process right to a fair trial prevents the State from subjecting a person
to trial when that person’s ‘mental condition is such that he lacks the capacity to understand the
nature and object of the proceedings against him, to consult with counsel, and to assist in preparing
his defense.’”) (quoting Drope v. Missouri, 420 U.S. 162, 171 (1975)); see also Grayless v. State,
567 S.W.2d 216, 220 (Tex. Crim. App. 1978) (“Delays encountered in bringing a defendant to trial
who claims to be incompetent or who is temporarily incompetent ordinarily do not infringe on the
right to a speedy trial.”).
6
The record reflects that appellant suffered back pain which required medication and was
apparently overmedicated.
6
motion. On March 18, 2013, appellant filed another motion for continuance, which was granted.
The case was reset for trial on April 8, 2013, at which time appellant was tried before a jury.
While the almost eight-and-a-half-year delay between indictment and trial is
presumptively prejudicial, the record shows that the lengthy delay was not due to the actions of the
State but rather due in part to the overcrowded docket in the trial court but primarily to appellant’s
repeated requests for continuances and appellant’s incompetence to stand trial. Thus, this factor does
not weigh against the State.
Assertion of Right
Appellant filed a Motion to Dismiss for Lack of Speedy Trial seeking dismissal of the
indictment on October 29, 2012, almost 8 years after he was indicted. He never asked for a speedy
trial. Although a defendant’s failure to assert his speedy trial right does not amount to a waiver of
that right, failure to assert the right makes it difficult to prove he was denied a speedy trial. Barker,
407 U.S. at 532; Dragoo v. State, 96 S.W.3d 308, 314 (Tex. Crim. App. 2003). A defendant’s lack
of a timely demand for a speedy trial indicates strongly that he did not really want a speedy trial and
that he was not prejudiced by the lack of one. Dragoo, 96 S.W.3d at 314. Furthermore, the longer
the delay becomes, the more likely it would be that a defendant who wished a speedy trial would take
some action to obtain it. Id. Thus, inaction weighs more heavily against a violation the longer the
delay becomes. Id.
Here, appellant did not assert his speedy trial right for nearly 8 years, and even then
his only objective was to obtain a dismissal not a trial. Requesting dismissal of the charges, rather
than requesting a prompt trial setting, indicates a desire to have no trial instead of a speedy one.
7
Cantu, 253 S.W.3d at 283. In addition, because appellant never asked for a speedy trial—he asked
only for a dismissal in his motion—it was incumbent upon him to show that he had tried to get the
case into court so that he could go to trial in a timely manner. See id. at 284. He failed to do so. In
fact, the record reflects that appellant repeatedly sought continuances and continually acquiesced in
(or even actively agreed to) resetting his case for trial, even after he filed his motion to dismiss on
speedy trial grounds. Appellant’s actions were inconsistent with a demand for speedy trial. See
Henson, 407 S.W.3d at 769; Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003).
Accordingly, this factor weighs heavily against appellant and against finding a violation of his right
to speedy trial.
Prejudice Caused by the Delay
Prejudice is assessed in light of the three interests a speedy trial is designed to protect:
(1) preventing oppressive pretrial incarceration; (2) minimizing anxiety and concern of the accused;
and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532. Of these
three, the most serious is the last, because the inability of the defendant to prepare a defense skews
the fairness of the entire system. Id.
Here, appellant was arrested on November 10, 2004, two days after he was indicted,
and was released on bond two days later on November 12, 2004. Thus, appellant was out on bond
at all relevant times, so he was not prejudiced by pretrial incarceration. With respect to the second
interest, appellant offered no evidence to the trial court that the delay had caused him any unusual
anxiety or concern beyond the level normally associated with being charged with a felony sexual
crime. See Shaw, 117 S.W.3d at 890. Finally, with respect to the third interest, we must presume
8
that the lengthy delay here did adversely affect appellant’s ability to defend himself; however, this
presumption is extenuated by appellant’s conduct: his repeated contribution to and longtime
acquiescence in the delay. See id.; Dragoo, 96 S.W.3d at 315. A substantial portion of the delay
was attributable to appellant’s lack of readiness. See Zamorano, 84 S.W.3d at 655–56.
In short, on this record, the trial court could have reasonably concluded that appellant
failed to demonstrate sufficient prejudice. Therefore, this factor weighs against finding a violation
of his right to speedy trial.
Balancing the Factors
Balancing all the Barker factors, we conclude that appellant was not denied his right
to a speedy trial. Weighing in favor of finding a violation of appellant’s speedy trial right is the
excessive delay. However, while this first factor supports appellant’s position, the last three do not.
The delay in this case was caused by a combination of valid and neutral reasons (appellant’s
incompetence to stand trial and a crowded court docket) as well as reasons attributable to appellant
(his repeated requests for continuance). Thus, this factor does not weigh against the State. Weighing
against finding a violation of the right is appellant’s acquiescence to the 8-year delay, his repeated
requests for continuances, his tardy assertion of the right, and his request to dismiss the charges
against him rather than seek a trial. Also weighing against finding a violation is appellant’s failure
to demonstrate prejudice and the fact that any prejudice was extenuated by appellant’s conduct.
Balancing the relative weights of the four factors, we conclude that appellant failed
to show that he was entitled to relief for lack of a speedy trial. See Cantu, 253 S.W.3d at 281; see
also Zamorano, 84 S.W.3d at 648. We therefore hold the trial court did not err in denying
9
appellant’s motion to dismiss the indictment based on a speedy trial violation. See Barker, 407 U.S.
at 522. We overrule appellant’s first point of error.
Motion for Continuance
During the punishment phase of trial, appellant made an oral request to continue the
trial when two defense witnesses (appellant’s sister and mother) “went missing during the trial.”
After hearing a proffer of the missing witnesses’ testimony, the trial court denied the motion. In his
second point of error, appellant contends the trial court abused its discretion in denying his motion
for continuance.
A motion for continuance must be made by sworn, written motion in order to preserve
appellate review from a trial court’s denial of a motion for a continuance. Tex. Code Crim. Proc.
arts. 29.03, 29.08; see Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim. App. 2012); Anderson
v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009). “[A]n unsworn oral motion preserves
nothing for appeal.” Blackshear, 385 S.W.3d at 591; see also Anderson, 301 S.W.3d at 279 (party
forfeits right to complain about denial of continuance if party makes unsworn oral motion for
continuance).
Here, there was no written, sworn motion for continuance presented to the trial court.
Appellant concedes as much in his brief but dismisses the statutory requirements, claiming that no
such motion was filed “because [counsel] could not [file one]” due to time constraints and averring
that “the trial court seemed satisfied with the oral motion.” He then makes what appears to be a due
process argument concerning the trial court’s denial of his unsworn oral motion, asserting that the
violation of his “substantial and due process right to present a defense was so egregious, it denied
10
him the basic right to a fair punishment trial.” However, the Texas Court of Criminal Appeals has
explicitly rejected a due process exception to the rule requiring motions for continuances to be
written and sworn in order to be preserved on appeal. Anderson, 301 S.W.3d at 280; see Blackshear,
385 S.W.3d at 591.
Given that the motion in question was oral and unsworn, and because no due process
exception exists to the written-and-sworn requirement, appellant’s complaint about the denial of his
motion for continuance was not properly preserved for appeal, see Blackshear, 385 S.W.3d at 591,
and appellant has forfeited his right to complain about the judge’s ruling, see Anderson, 301 S.W.3d
at 279. We overrule appellant’s second point of error.
Right to Present Defense
During the defense’s case-in-chief, appellant recalled the victim, R.N.D. At a bench
conference during her direct examination, appellant’s counsel sought permission to ask her the
following questions:
Isn’t it true that you indicated that two other men were the ones that had actually
sexually assaulted you?
Isn’t it true that you said a guy, a person named Manuel, your mother’s uncle [sic],
had molested you?
Isn’t it true that your mother’s brother molested you on that tape? Isn’t that true?
The State objected after the first question, asserting that the evidence was “[a]bsolutely irrelevant
to this.” Appellant’s counsel did not respond to the objection and presented no argument as to how
the evidence was relevant. The trial court refused to allow any of the questions. Appellant’s counsel
11
asked the court to “note [his] exception” but offered no argument as to how the testimony he sought
to introduce was admissible. In his third point of error, appellant asserts that the trial court’s
exclusion of evidence concerning R.N.D.’s prior sexual abuse by other men, or statements that she
made about such abuse, violated his right to present a complete defense.7
Preservation of error is a systemic requirement on appeal. Blackshear, 385 S.W.3d
at 590; Boston v. State, 373 S.W.3d 832, 841 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321
(Tex. Crim. App. 2013). A reviewing court should not address the merits of an issue that has not
been preserved for appeal. Blackshear, 385 S.W.3d at 590; Wilson v. State, 311 S.W.3d 452, 473–74
(Tex. Crim. App. 2010); Boston, 373 S.W.3d at 841. An appellate issue involving a proffer of
evidence, as opposed to an objection, must still satisfy the preservation-of-error requirements. Reyna
v. State, 168 S.W.3d 173, 179 (Tex. Crim. App. 2005) (stating that purpose of requiring objection
is to give trial court or opposing party opportunity to correct error or remove basis for objection and
reasoning that “[a]though this case involves a proffer of evidence rather than an objection, the same
rationale applies”). To preserve a complaint regarding the exclusion of evidence, a party must not
only tell the judge that the evidence is admissible, but must also explain why it is admissible. Id. at
177–79. Further, the explanation given at trial must match the one urged on appeal. Id. at 179.
In this instance, when the trial court’s ruling excluded the complained-of evidence,
appellant neither objected to the exclusion on the ground, nor offered the evidence on the basis, that
his right to present a complete defense was compromised. While the right to a meaningful
7
It is unclear from the record, based on the questions appellant proposed, whether appellant
was seeking to introduce evidence that R.N.D. had made statements that she had previously been
sexually abused by two other men or evidence of the prior sexual abuse itself.
12
opportunity to present a complete defense is rooted in constitutional protections, even constitutional
rights may be waived if the proper request, objection, or motion is not asserted in the trial court. See
Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); see also Anderson, 301 S.W.3d at
279 (right to have meaningful opportunity to present complete defense is forfeitable if not properly
raised at trial). Because appellant did not articulate that his right to present a complete defense
supported the admission of the complained-of excluded evidence, the trial court never had the
opportunity to rule on this rationale. Accordingly, appellant did not preserve his complaint that the
exclusion of the complained-of evidence violated his right to present a complete defense. See Cerda
v. State, No. 03-12-00582-CR, 2014 WL 4179359, at *6 (Tex. App.—Austin Aug. 22, 2014, no pet.
h.) (mem. op., not designated for publication). We overrule appellant’s third point of error.
“Bolstering” Testimony
The State recalled R.N.D. during its rebuttal case. During redirect examination, the
following dialog occurred:
PROSECUTOR: Now when you testified at the beginning of the trial, the
things that you told the jury that your dad did to you, were
those true?
WITNESS: Yes.
DEFENSE
COUNSEL: Objection, Your Honor. It’s repetitious and bolstering.
THE COURT: Overruled.
PROSECUTOR: Were you being truthful, [R.N.D.], when you talked about those
things your dad did to you?
13
WITNESS: Yes.
In his fourth point of error, appellant asserts that the trial court erred in allowing this testimony
because it was “improper bolstering.”
As noted in the discussions of the previous points of error, preservation of error is a
systemic requirement on appeal, Blackshear, 385 S.W.3d at 590; Boston, 373 S.W.3d at 841, and
a reviewing court should not address the merits of an issue that has not been preserved for appeal,
Blackshear, 385 S.W.3d at 590; Wilson, 311 S.W.3d at 473–74; Boston, 373 S.W.3d at 841. To
preserve a complaint for appellate review, a party must timely object, stating the specific legal basis
for the objection if it is not apparent from the context of the objection. Tex. R. App. P. 33.1(a)(1);
Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). An objection is timely if made at the
earliest opportunity or as soon as the grounds for the objection become apparent. Pena v. State,
353 S.W.3d 797, 807 (Tex. Crim. App. 2011); Sandoval v. State, 409 S.W.3d 259, 306 (Tex.
App.—Austin 2013, no pet.). If a defendant fails to object until after an objectionable question has
been asked and answered, and he can show no legitimate reason to justify the delay, his objection
is untimely, and any claim of error is forfeited. Luna v. State, 268 S.W.3d 594, 604 (Tex. Crim.
App. 2008); Sandoval, 409 S.W.3d at 306. Here, appellant objected to R.N.D.’s testimony only after
the question concerning the truthfulness of her earlier testimony had been asked and answered.
Thus, appellant’s objection was untimely.8
8
Appellant asserts in his brief that “[a] timely objection was lodged” to the question about
whether R.N.D.’s previous testimony was true. We disagree, as the record shows the contrary.
14
Furthermore, with two exceptions that do not apply here, a party must continue to
object each time the objectionable evidence is offered.9 Haley v. State, 173 S.W.3d 510, 517 (Tex.
Crim. App. 2005); Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003); Sandoval,
409 S.W.3d at 287. Although appellant initially objected, albeit untimely, to R.N.D.’s testimony
about “the things that [she] told the jury that [her] dad did to [her]” being true, he did not object to
the follow-up question and answer, occurring after the trial court overruled appellant’s objection, that
R.N.D. was being truthful in her earlier testimony “when [she] talked about those things [her] dad
did to [her].” Thus, appellant did not continue to object to all of the evidence about the truthfulness
of R.N.D.’s earlier testimony, the “bolstering” testimony about which he now complains.
For these reasons, appellant did not preserve his complaint about the admission of
improper “bolstering” testimony.10 See Saldano v. State, 70 S.W.3d 873, 889 (Tex. Crim. App.
9
The two exceptions to the requirement of subsequent objections require counsel to either
(1) make a running objection, or (2) request a hearing outside the presence of the jury. Haley
v. State, 173 S.W.3d 510, 517 (Tex. Crim. App. 2005); Martinez v. State, 98 S.W.3d 189, 193 (Tex.
Crim. App. 2003).
10
As this Court has noted in previous opinions, there is some question as to whether
a “bolstering” objection preserves error. See Lubojasky v. State, No. 03-10-00780-CR,
2012 WL 5192919, at *15 n.13 (Tex. App.—Austin Oct. 19, 2012, pet. ref’d) (mem. op., not
designated for publication); Muniz-Luna v. State, No. 03-09-00266-CR, 2010 WL 3810820, at *3
n.4 (Tex. App.—Austin Sept. 30, 2010, pet. ref’d) (mem. op., not designated for publication); Biddy
v. State, No. 03-01-00182-CR, 2002 WL 533652, at *2–3 (Tex. App.—Austin Apr. 11, 2002, no
pet.) (mem. op., not designated for publication). We recognize that while “bolstering” was a proper
objection in Texas courts prior to the adoption of the Rules of Evidence, the rules themselves contain
no specific provision regarding bolstering. See Cohn v. State, 849 S.W.2d 817, 821 (Tex. Crim.
App. 1993) (Campbell, J., concurring) (arguing that bolstering objection should no longer be
recognized, because “an objection that certain evidence is ‘bolstering’ in no way invokes the Rules
or informs the trial court of the basis for exclusion under the Rules”); see also Rivas v. State,
275 S.W.3d 880, 887 (Tex. Crim. App. 2009) (noting that “[m]any appellate courts have cited the
Cohn concurrence as authority to abandon ‘bolstering’ as a valid objection to preserve error for
review”). However, given our disposition of this point of error, we need not address the continuing
15
2002) (“[T]he failure to object in a timely and specific manner during trial forfeits complaints about
the admissibility of evidence.”); see also Martinez, 98 S.W.3d at 193 (“[T]he law in Texas requires
a party to continue to object each time inadmissible evidence is offered.”). Accordingly, we overrule
appellant’s third point of error.
Voir Dire of Expert
Also during its rebuttal case, the State called Mike Betancourt, a child forensic
interviewer, to testify as an expert. Betancourt was asked to explain what a children’s advocacy
center is and to describe his education and background as a forensic interviewer. When discussing
his interview experience, the prosecutor asked Betancourt about the failure of children he had
interviewed to disclose abuse during the interview. Appellant objected asserting that “[t]here’s no
way that someone could know a negative, if they didn’t tell something, so we would object to that
being speculative.” The trial court overruled the objection, and the prosecutor asked the question
again, rephrasing it slightly. Appellant again objected, stating that “there would have to be a lot
more groundwork predicate to know if somebody didn’t reveal something to you.” During the
ensuing exchange with the prosecutor, appellant’s counsel asked to “have this discussion outside the
presence of the jury to determine this witness’s qualification.” After the trial court refused to allow
that, counsel added “Under 701” to his request. Then, at the prosecutor’s request, the parties
approached the bench. During the bench conference, appellant’s counsel requested “a hearing
outside the presence of the jury to determine a Daubert challenge to see if he’s actually qualified to
vitality of a “bolstering” objection in Texas.
16
testify to these opinions.” When the trial court refused his request, counsel clarified, “Just to be
clear, you’re refusing my request to examine this witness outside the presence of the jury to
determine his qualifications.” The trial court confirmed the denial of that request.
In his fifth point of error, appellant contends the trial court erred in failing to follow
the proper procedure before permitting Betancourt to testify as an expert. Specifically, he asserts that
the trial court erred in refusing to allow appellant an opportunity to voir dire Betancourt before he
testified “in contradiction of Texas Rule of Evidence 705(b).”11 The State responds that appellant
failed to preserve this complaint because his complaint on appeal does not comport with his request
at trial. We agree.
Once again, preservation of error is a systemic requirement on appeal, Blackshear,
385 S.W.3d at 590; Boston, 373 S.W.3d at 841, and a reviewing court should not address the merits
of an issue that has not been preserved for appeal, Blackshear, 385 S.W.3d at 590; Wilson,
311 S.W.3d at 473–74; Boston, 373 S.W.3d at 841. To preserve a complaint for appellate review,
a party must have presented to the trial court a timely request that states the specific grounds for the
desired ruling if they are not apparent from the context of the request. See Tex. R. App. P.
33.1(a)(1); Clark, 365 S.W.3d at 339. Further, the point of error on appeal must comport with the
request made at trial. See Yazdchi, 428 S.W.3d at 844; Clark, 365 S.W.3d at 339.
11
In his brief, appellant initially phrases this point of error as the trial court’s erroneous
admission of expert testimony “without first conducting the proper analysis of (1) the expert’s
qualifications, (2) the reliability of the subject matter of the testimony, and (3) relevance of the
proposed testimony.” However, the substance of his argument is that the trial court erred in failing
to grant his request to conduct a voir dire hearing of Betancourt outside the jury’s presence pursuant
to Texas Rule of Evidence 705(b).
17
As is apparent from the above discussion, appellant requested a hearing outside the
presence of the jury to examine Betancourt’s qualifications as an expert. On appeal, he asserts that
he was denied the opportunity to voir dire Betancourt under Texas Rule of Evidence 705(b), which
provides, as is relevant here, that “[p]rior to the expert giving the expert’s opinion or disclosing the
underlying facts or data, a party against whom the opinion is offered upon request in a criminal case
shall . . . be permitted to conduct a voir dire examination [outside the jury’s presence] directed to
the underlying facts or data upon which the opinion is based.” Tex. R. Evid. 705(b) (emphasis
added). A request to take a witness on voir dire to “prove up” his expert qualifications, however,
does not constitute a request for a Rule 705(b) hearing to inquire into the “underlying facts or data”
of the expert’s opinion. Jenkins v. State, 912 S.W.2d 793, 814 (Tex. Crim. App. 1995) (op. on
reh’g). Consequently, appellant’s request to conduct a voir dire examination of Betancourt “to
determine his qualifications” was not a request for a Rule 705(b) hearing outside the jury’s presence
to explore the “underlying facts or data” of Betancourt’s opinion. See id.; Wooten v. State,
No. 03-11-00667-CR, 2013 WL 1831571, at *4–5 (Tex. App.—Austin Apr. 24, 2013, no pet.) (mem.
op., not designated for publication). Appellant failed to preserve his Rule 705(b) claim for appeal.
See Jenkins, 912 S.W.2d at 814; Wooten, 2013 WL 1831571, at *5; Hernandez v. State,
No. 14-07-00124-CR, 2008 WL 2262046, at *5 (Tex. App—Houston [14th Dist.] May 29, 2008, pet.
ref’d) (mem. op., not designated for publication); see also Martinez v. State, 91 S.W.3d 331, 336
(Tex. Crim. App. 2002) (“[U]nder Rule 33.1, the issue is . . . whether the complaining party on
appeal brought to the trial court’s attention the very complaint that party is now making on appeal.”).
Accordingly, we overrule appellant’s fifth point of error.
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Cumulation Order
As an additional matter, we address sua sponte the legality of the trial court’s
cumulation order. At sentencing, the State moved to cumulate the sentences of Counts One and
Two. Ultimately, in the oral pronouncement of sentence, the trial court ordered the cumulation for
the sentences of Counts Three through Eight and then ordered the two 99-year sentences for Counts
One and Two to run concurrently with each other but consecutive to the sentences for Counts Three
through Eight. The written judgments of conviction reflect this cumulation order.
When multiple offenses arising out of the “same criminal episode” are tried in the
same criminal action, the sentences must be concurrent unless a specific statutory exception within
chapter three of the Texas Penal Code provides otherwise. Tex. Penal Code § 3.03(a); Sullivan
v. State, 387 S.W.3d 649, 651 (Tex. Crim. App. 2013). One such exception provides that
consecutive sentences may be imposed for convictions for certain types of sexual offenses if the
offenses were committed against a victim younger than 17 years of age. See Tex. Penal Code
§ 3.03(b)(2)(A). This presumably was the exception the State and the trial court relied on in this
case. However, this exception is inapplicable to Counts One through Five.
The provision of Section 3.03 of the Texas Penal Code adding the exception for
the cumulation of child sexual abuse offenses, Section 3.03(b)(2)(A), was enacted in 1997 and
became effective September 1, 1997. See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1,
1973 Tex. Gen. Laws 883, 891, amended by Act of May 31, 1997, 75th Leg., R.S., ch. 668, §§ 2, 8,
sec. 3.03, 1997 Tex. Gen. Laws 2250, 2251–53 (now codified at Tex. Penal Code § 3.03(b)(2)(A)).
The savings clause to the bill amending Section 3.03 to add the exception provides, in relevant part,
19
that “[t]he change in law made by this Act applies only to an offense committed on or after the
effective date of this Act. . . . An offense committed before the effective date of this Act is covered
by the law in effect when the offense was committed, and the former law is continued in effect for
that purpose.” See Act of May 31, 1997, 1997 Tex. Gen. Laws at 2253. The law in effect at the time
appellant perpetrated the aggravated-sexual-assault-of-a-child offenses for which he was convicted
in Counts One through Five did not authorize the cumulation of sentences for child sexual abuse
offenses.12 Thus, the trial court did not have the authority to cumulate the 99-year sentences for the
aggravated-sexual-assault-of-a-child offenses in Counts One, Two, Three, Four, and Five, and these
sentences must run concurrently with each other. See Tex. Penal Code § 3.03(a).
An improper cumulation order is a void sentence. LaPorte v. State, 840 S.W.2d 412,
415 (Tex. Crim. App. 1992). Although appellant has not complained at trial or on appeal about the
cumulation of the aggravated-sexual-assault-of-a-child sentences being illegal sentences, any court
12
At the time of the offenses for which appellant was convicted in Counts One and Two,
Section 3.03 provided,
When the accused is found guilty of more than one offense arising out of the same
criminal episode prosecuted in a single criminal action, sentence for each offense for
which he has been found guilty shall be pronounced. Such sentences shall run
concurrently.
See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 891. There
were no statutory exceptions authorizing the cumulation of sentences. The statute was amended
in 1995 to add an exception authorizing the cumulation of sentences for convictions for
intoxication manslaughter. See Act of May 26, 1995, 74th Leg. R.S., ch. 596, § 1, sec. 3.03,
1995 Tex. Gen. Laws 3435. This amended statute was in effect at the time of the offenses for which
appellant was convicted in Counts Three, Four, and Five. See id. § 2 (changes in law made by
amended statute applies to offenses committed on or before effective date of amended statute), § 4
(amended statute effective September 1, 1995).
20
with jurisdiction has inherent authority to notice and take action on an illegal or void sentence at any
time, even sua sponte. Mizell v. State, 119 S.W.3d 804, 805–07 (Tex. Crim. App. 2003). An
unlawful cumulation order is remedied by reforming the judgment to set aside the order. Robbins
v. State, 914 S.W.2d 582, 584 (Tex. Crim. App. 1996); see Beedy v. State, 250 S.W.3d 107, 113
(Tex. Crim. App. 2008) (reaffirming that unlawful cumulation order is remedied by reforming
judgment to set aside cumulation order). Accordingly, we modify the judgments of conviction for
Counts One, Two, Three, Four, and Five to delete the cumulation order.
CONCLUSION
Having overruled appellant’s five points of error, we affirm the trial court’s
judgments of conviction for Counts Six, Seven, and Eight. Correcting non-reversible error, we
modify the trial court’s judgments of conviction for Counts One, Two, Three, Four, and Five to
delete “CONSECUTIVELY” and instead reflect that the sentence shall run “CONCURRENTLY”
and to delete the cumulation order. As so modified, we affirm the judgments of conviction for
Counts One, Two, Three, Four, and Five.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Rose and Goodwin
Affirmed; Modified and, as Modified, Affirmed
Filed: November 7, 2014
Do Not Publish
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