Hector Mario Nuncio v. State ( 2011 )

MEMORANDUM OPINION
No. 04-11-00361-CR
Hector Mario NUNCIO,
Appellant
v.
The STATE of Texas,
Appellee
From the 187th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CR-11284
Honorable Raymond Angelini, Judge Presiding
Opinion by: Phylis J. Speedlin, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: December 14, 2011
AFFIRMED
Hector Mario Nuncio appeals from his convictions for aggravated sexual assault and
indecency with a child by contact. We affirm the trial court’s judgment.
ANALYSIS
Nuncio was indicted for a series of acts of sexual abuse of his granddaughter, D.N., over
a period of three years. Specifically, Nuncio was charged with one count of aggravated sexual
assault of D.N., and six counts of indecency with a child, D.N., by sexual contact. See TEX.
04-11-00361-CR
PENAL CODE ANN. §§ 22.021(a)(1)(B), 21.11(a)(1) (West Supp. 2011 & West 2011). After a
jury trial, Nuncio was convicted of all counts and sentenced to fifteen years’ imprisonment on
each count, with the sentences to run concurrently. In his sole issue on appeal, Nuncio asserts
the prosecutor engaged in willful misconduct during closing argument which deprived him of a
fair trial and requires reversal. Specifically, Nuncio complains the prosecutor injected new facts
into the case which were outside the evidence when she stated during her guilt-innocence closing
argument that,
He [Dad] was usually working. Mom was working. Grandma, Defendant’s wife,
was working. She worked in the liquor store, worked nights, would take jobs on
weekends; so, Hector Nuncio was completely alone with this child. Perfect
target, perfect opportunity for someone who likes to fondle children’s breasts,
genitals, digitally penetrate a child. Perfect opportunity. Perfect target, [D.N].
Nuncio contends the argument suggested that he had committed sexual abuse against other
children besides the complainant, D.N., and that no evidence of such other crimes was presented
during trial. Nuncio concedes he did not object to the prosecutor’s statement, but asserts the
error was so prejudicial it could not be cured by an instruction to disregard and thus did not
require preservation. Nuncio relies on cases that pre-date Cockrell v. State, 933 S.W.2d 73 (Tex.
Crim. App. 1996), in which the Court of Criminal Appeals held that in order for a defendant to
complain on appeal about an improper jury argument, he must have objected in the trial court
and obtained an adverse ruling on his objection; otherwise, his complaint about the improper
argument is forfeited. Cockrell, 933 S.W.2d at 89; see Penry v. State, 903 S.W.2d 715, 764
(Tex. Crim. App. 1995) (proper method for preserving error based on prosecutorial misconduct
is to object on specific grounds, request an instruction for the jury to disregard the comment, and
move for a mistrial). The necessity to raise an objection in the trial court applies regardless of
whether an instruction to disregard could have cured the improper argument. Cockrell, 933
-2-
04-11-00361-CR
S.W.2d at 89; see Valencia v. State, 946 S.W.2d 81, 82-83 (Tex. Crim. App. 1997); see also
Threadgill v. State, 146 S.W.3d 654, 667, 670 (Tex. Crim. App. 2004) (reaffirming the Cockrell
rule).
Because Nuncio did not object to the prosecutor’s closing argument, he has failed to
preserve any error. TEX. R. APP. P. 33.1(a). Accordingly, we overrule his sole issue on appeal
and affirm the trial court’s judgment.
Phylis J. Speedlin, Justice
DO NOT PUBLISH
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