Gabriel Avelar v. State ( 2013 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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GABRIEL AVELAR, No. 08-11-00292-CR
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Appellant, Appeal from
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v. County Court at Law No. 7
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THE STATE OF TEXAS, of El Paso County, Texas
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Appellee. (TC # 20100C04140)
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OPINION
Gabriel Avelar appeals his conviction of indecent exposure. A jury found Appellant
guilty. The State and Appellant entered into an agreement regarding the punishment to be
assessed. The court assessed his punishment in accordance with the agreement at confinement in
the county jail for 180 days, suspended for 18 months, and a fine of $500. We affirm.
FACTUAL SUMMARY
On April 21, 2010 at around noon, Myrna Seijas exited a Wal-mart store at Zaragosa and
Vista Del Sol in El Paso. She was walking to her vehicle with her groceries when a Ford
Expedition stopped near her. The driver said something to her to get her attention and Seijas
turned and looked at him. She saw that the man, who was alone in the SUV, had his pants down
and was masturbating. Seijas made an in-court identification of Appellant as the man she had
seen in the parking lot. Scared and offended, Seijas continued walking to her vehicle and began
quickly putting the groceries in the trunk of her car, but she became more nervous when
Appellant pulled the Expedition around and parked in front of her vehicle. It appeared as though
Appellant was continuing to masturbate. Seijas got into her car, called her husband as she was
leaving the parking lot, and told him everything that had happened. Seijas also described
Appellant and his vehicle to her husband. She could see in her rearview mirror that Appellant
had resumed driving around in the parking lot.
Seijas’ husband, Jesus Cerpa, testified that he received a call from his wife at around
noon on April 21, 2010 and she told him what had happened. He drove to Wal-mart and saw, at
the intersection by the store, a vehicle and driver matching the description given to him by his
wife. Cerpa followed the SUV to a nearby residence and called both the police and his brother.
Cerpa identified Appellant as the driver. After Appellant exited the vehicle, Cerpa approached
him and asked him in Spanish, “So you were doing that?” Appellant told Cerpa to wait until his
sister-in-law had gone into the house. After she had gone inside, Appellant admitted to Cerpa
that he had exposed himself. Cerpa’s brother arrived at the house. Cerpa denied that he or his
brother had any kind of weapons, including bats.
Mireya Canales, an El Paso police officer, arrived at the house and spoke with Cerpa and
his brother who appeared to be upset. Canales did not observe either man to be armed with any
kind of weapon, including a bat. After speaking to Cerpa, Canales went to the house and spoke
briefly with two females who came to the door. By this time, two other police officers, Enrique
Davila and Enrique Carrillo, arrived at the scene and Appellant came out of one of the bedrooms.
Davila and Carrillo began speaking with Appellant and Canales resumed speaking with Cerpa.
Appellant invited Davila and Carrillo inside the house where he explained that he had a bad rash
and warts on his crotch and he had just been trying to “air it out.” When Davila asked Appellant
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how bad the rash was, Appellant said “I’ll show you” and dropped his shorts to show them his
crotch and genitals but neither officer saw any sign of a rash, inflammation, or warts. Seijas
arrived at the house and identified Appellant as the person who had exposed himself to her. The
police arrested Appellant for indecent exposure.
Appellant’s sister-in-law, Ashley Zaragosa, testified that Appellant drove her and her son
to a doctor’s appointment on April 21, 2010, but did not wait with them at the doctor’s office.
The doctor’s office is near the Wal-mart. Appellant picked them up after the appointment and
they dropped off some prescriptions at the Walgreen’s adjacent to Wal-mart before returning
home. When they arrived at the house and parked, they were approached by two angry men with
bats. At first, the men would not let her out of the car, but Appellant asked them to let Zaragosa
and her son go inside. She told her sister what was going on but she did not call the police. She
did tell the police officers that the two men were armed with bats, but the officers denied that
anyone had reported that to them, and they had not seen anyone with a weapon.
JURY ARGUMENT
In Issue One, Appellant argues that the trial court erred in denying his motion for mistrial
on the ground the prosecutor made an improper jury argument by striking at the defendant over
the shoulders of his attorney. The State responds that Appellant’s “improper argument”
objection did not preserve the complaint presented on appeal.
During closing argument, defense counsel told the jury that he believed something had
happened in the Wal-mart parking lot but the State had failed to prove beyond a reasonable doubt
that Appellant was the same man who had exposed himself to Seijas. He focused his argument
on how Appellant and his vehicle did not match Seijas’s description. During rebuttal, the
prosecutor made the following argument:
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[The prosecutor]: Mr. Morales isn’t contesting the fact that that’s exactly what
was going on in that parking lot. He didn’t even get up here and ask you to find
his client not guilty. Isn’t that a little odd?
[Defense counsel]: Your Honor, I’m going to object to that. That’s improper
argument. I move for a mistrial at this point. The State knows that’s improper --
The trial court overruled the objection and denied the request for a mistrial. Defense counsel
attempted to clarify his objection by stating that the argument was an improper comment on the
evidence.
To preserve a complaint for appellate review, a party must make a timely and specific
objection. TEX.R.APP.P. 33.1(a)(1)(A); Simpson v. State, 119 S.W.3d 262, 268 (Tex.Crim.App.
2003). Further, the complaint raised on appeal must comport with the objection made at trial.
Turner v. State, 87 S.W.3d 111, 117 (Tex.Crim.App. 2002). Appellant’s objection to “improper
argument” is too general to preserve error and the record does not show that the legal basis for
the objection was apparent to the court and the State. See Miles v. State, 312 S.W.3d 909, 911
(Tex.App.--Houston [1st Dist.] 2010, pet. ref’d). Appellant’s additional objection that the
prosecutor’s argument was an improper comment on the evidence is not the same as an objection
that the prosecutor’s argument was striking at the defendant over the shoulders of counsel.
When a prosecutor makes uninvited and unsubstantiated accusations of improper conduct
directed toward a defendant’s attorney, in an attempt to prejudice the jury against the defendant,
courts refer to this as striking at the defendant over the shoulders of his counsel. Phillips v.
State, 130 S.W.3d 343, 355 (Tex.App.--Houston [14th Dist.] 2004, pet. ref’d)(op. on reh’g),
citing Gomez v. State, 704 S.W.2d 770, 771-72 (Tex.Crim.App. 1985). We conclude that
Appellant’s objection did not preserve the issue raised on appeal. See Marchbanks v. State, 341
S.W.3d 559, 565 (Tex.App.--Fort Worth 2011, no pet.)(argument on appeal that the prosecutor’s
jury argument struck at the accused over the shoulders of counsel was not preserved by objection
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that the argument was outside of the record). We overrule Issue One.
ATTORNEY’S FEES
In his second issue, Appellant challenges the term of community supervision requiring
him to reimburse El Paso County for his court-appointed attorney’s fees on the ground there is
no evidence to support a finding that he has the financial resources to offset the costs of services
provided. In support of his argument, Appellant cites Mayer v. State, 309 S.W.3d 552, 554-55
(Tex.Crim.App. 2010) and Article 26.05(g) of the Code of Criminal Procedure. 1 The State
responds that the issue is moot because the record does not reflect that Appellant has been
required to reimburse El Paso County for attorney’s fees. We agree.
The trial court signed the terms and conditions of community supervision on September
9, 2011 and ordered Appellant to pay attorney’s fees in an amount to be determined within sixty
days. The payment information sheet filed on that same date shows the amount of court
appointed attorney’s fees due as “$0.00.” Appellant’s trial attorney submitted a claim in the
amount of $2,741.50 for his fees and expenses and a payment in that amount was approved on
October 21, 2011. The record does not contain an amended community supervision order
requiring Appellant to reimburse El Paso County for any portion or the full amount of those
attorney’s fees. Further, there is nothing in the record to indicate that Appellant paid any portion
of the attorney’s fees as a condition of his community supervision.
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An indigent criminal defendant can be required to reimburse the county for court-appointed counsel’s fees in
three instances. The first two arise under Article 26.05(g) which provides that: “If the court determines that a
defendant has financial resources that enable him to offset in part or in whole the costs of the legal services
provided, including any expenses and costs, the court shall order the defendant to pay during the pendency of the
charges or, if convicted, as court costs the amount that it finds the defendant is able to pay. TEX.CODE
CRIM.PROC.ANN. art. 26.05(g)(West Supp. 2012). The third instance arises under Article 42.12, § 11(a)(11) which
authorizes the trial court to require a defendant placed on community supervision to reimburse the county in which
the prosecution was instituted for compensation paid to appointed counsel for defending the defendant in the case.
TEX.CODE CRIM.PROC.ANN. art. 42.12, § 11(a)(11)(West Supp. 2012). The trial court is required to consider the
ability of the defendant to make payments before ordering him to reimburse the county for his court-appointed
attorney’s fees. TEX.CODE CRIM.PROC.ANN. art. 42.12, § 11(b)(West Supp. 2012).
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Courts do not have authority to provide advisory opinions, or to decide cases on
hypothetical or contingent facts. See General Land Office of Texas v. OXY U.S.A., Inc., 789
S.W.2d 569, 570 (Tex. 1990); Beltran v. Beltran, 324 S.W.3d 107, 110 (Tex.App.--El Paso 2010,
no pet.). A case is rendered moot when: (1) it appears that a party seeks to obtain a judgment
upon some controversy, when in reality none exists; or (2) a party seeks a judgment upon some
matter which cannot have a practical legal effect upon a then existing controversy. Beltran, 324
S.W.3d at 110. In the absence of any showing in the record that the trial court or community
supervision department required Appellant to pay any portion of the attorney’s fees, the issue
raised on appeal is moot. There are two exceptions to the mootness doctrine: (1) capable of
repetition yet evading review and (2) collateral consequences. General Land Office, 789 S.W.2d
at 571. Neither of these exceptions applies here. Having found that the complaint raised in this
issue is moot, we overrule Issue Two and affirm the judgment of the trial court.
October 16, 2013
ANN CRAWFORD McCLURE, Chief Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
(Do Not Publish)
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