Cecilio Sosa Vargas v. State ( 2003 )

NOS. 07-02-0446-CR

07-02-0447-CR

07-02-0448-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

APRIL 22, 2003

______________________________



CECILIO SOSA VARGAS, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE



_________________________________

FROM THE 223^RD DISTRICT COURT OF GRAY COUNTY;

NOS. 6352, 32,689, 32,691; HONORABLE LEE WATERS, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

OPINION

Cecilio Sosa Vargas appeals from the trial court's refusal to reduce bail in three related cases. We affirm.

BACKGROUND

As the result of a traffic accident, appellant was charged with manslaughter (trial court cause number 6352), driving with a suspended license (trial court cause number 32,691), and failure to stop and render aid (trial court cause number 32,689). Bail was initially set at $1,000,000 in the manslaughter case, $2,500 in the driving with a suspended license case, and $100,000 in the failure to stop and render aid case. Appellant applied to the trial court for writs of habeas corpus seeking reduction of bail in each case. A hearing was held on August 20, 2002. During the hearing appellant's counsel referenced Article 1, Section 11 of the Texas Constitution and Section 1.07 of the Code of Criminal Procedure ⁽¹⁾ in urging that the initial bail was excessive. The trial court lowered appellant's bail in the manslaughter case to $250,000 and in the failure to stop and render aid case to $25,000. No appeal was taken.

On September 30, 2002, appellant filed motions in each case to reduce bail pursuant to CCP art.17.151. He alleged that he had been confined for a period in excess of 90 days, the State was not ready for trial, and his bail must be reduced to an amount he could post. On October 1, 2002, appellant filed amended applications for habeas writs seeking reduction of bail in each case on the basis that the amounts set for bail during the August 20, 2002 hearing were excessive. The amended applications for habeas writs (1) did not reference any constitutional provision or statutory provision other than CCP art.17.151, (2) alleged that pursuant to CCP art. 17.151 the court was required to reduce appellant's bail to an amount he could afford, and (3) stated that no previous application had been made for issuance of a writ of habeas corpus seeking the relief requested in the amended motion.

The trial court held a hearing on the motions to reduce bail and amended applications for writs of habeas corpus. The court informed the parties by letter that the motions to reduce bail and the amended habeas applications were denied. Written orders denying each of appellant's motions to reduce bail were signed. No written orders referencing the amended applications for writs of habeas corpus were entered. Appellant filed notices of appeal in each of the three cases. The notices of appeal referenced only the orders denying appellant's motions to reduce bail.   

By two issues, appellant contends that (1) the bail set by the trial court in the aggregate amount of $325,500 for the three offenses was excessive and unreasonable in violation of the Eighth Amendment to the U.S. Constitution and Article 1, Sections 11 and 13 of the Texas Constitution; and (2) the trial court erred in finding that appellant did not rebut the State's prima facie showing of readiness within the 90 day period mandated by CCP art. 17.151, and in failing to reduce appellant's bail to the amount he could post.ISSUE 1: EXCESSIVE BAIL

By his first issue, appellant urges that his bail was excessive, in violation of the Eighth Amendment to the U.S. Constitution and Article 1, Sections 11 and 13 of the Texas Constitution. In the Argument and Authorities section of his brief he also references CCP articles 1.09 and 17.151. None of these bases were urged by his motions to reduce bail or amended habeas applications in the trial court. His trial court motions and amended habeas applications were based on CCP art. 17.151.

Appellant has not preserved error for appellate review as urged in his first issue because his complaint on appeal does not correlate to the matters he urged at trial. See Tex. R. App. P. 33.1(a); ⁽²⁾ Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App.1998); Thomas v. State, 723 S.W.2d 696, 700 (Tex.Crim.App. 1986). ⁽³⁾ We overrule appellant's first issue.   

ISSUE 2: REFUSAL TO REDUCE BAIL PURSUANT TO CCP ART. 17.151

Via his second issue, appellant urges that the State was not ready for trial in compliance with the time dictate of CCP art. 17.151, which provides that a defendant who is accused of a felony and who is detained in jail pending trial must be released either on personal bond or by reducing the amount of bail required if the State is not ready for trial within 90 days from the commencement of the defendant's detention. Appellant urges that under Rowe v. State, 853 S.W.2d 581 (Tex.Crim.App. 1993), he was entitled to have bail set at an amount the evidence showed he could make. On this direct appeal he prays that we set aside the trial court's interlocutory pretrial orders and enter an order that bail be set in the aggregate at $30,000.

We first must consider whether we have jurisdiction. See State v. Roberts, 940 S.W.2d 655, 657 (Tex.Crim.App. 1996). Jurisdiction is the power of the court over the subject matter of the case, conveyed by statute or constitutional provision, id., coupled with personal jurisdiction over the parties. See Flowers v. State, 935 S.W.2d 131, 134 n.4 (Tex.Crim.App. 1996); Fairfield v. State, 610 S.W.2d 771, 779 (Tex.Crim.App. 1981). Courts address the question of jurisdiction sua sponte, because unless a court has jurisdiction over a matter, its actions in the matter are without validity. See Roberts, 940 S.W.2d at 657 n.2.   

The right to appeal is conferred by the legislature, and generally a party may appeal only that which the legislature has authorized. See Marin v. State, 851 S.W.2d 275, 278 (Tex.Crim.App. 1993); Olowosuko v. State, 826 S.W.2d 940, 941 (Tex.Crim.App. 1992). Absent express authority, courts of appeals do not have jurisdiction to review interlocutory orders, see Ex parte Apolinar v. State, 820 S.W.2d 792, 794 (Tex.Crim.App. 1991), although some narrow exceptions to such rule may exist. See Wright v. State, 969 S.W.2d 588, 589 (Tex.App.-Dallas 1998, no pet.).  

The courts of appeals have split over whether appellate jurisdiction exists in regard to direct appeals from pretrial bail rulings such as the one before us. Compare Ramos v. State, 89 S.W.3d 122, 124-26 (Tex.App.-Corpus Christi 2002, no pet.) (TRAP 31.1 contemplates appeals of orders in bail proceedings) with Benford v. State, 994 S.W.2d 404, 409 (Tex.App.-Waco 1999, no pet.) (appellate jurisdiction does not exist over appeal from interlocutory pretrial order increasing amount of bail because no statutory grant of jurisdiction) and Ex parte Shumake, 953 S.W.2d 842, 846-47 (Tex.App.-Austin 1997, no pet.). See also Wright, 969 S.W.2d at 589-90 ("This appeal does not fall within one of the exceptions to the rule, nor are we inclined to construe rule 31.1 of the rules of appellate procedure to encompass a direct appeal of a pretrial order revoking bond.").

We lack a statutory grant of jurisdiction over this appeal. See Benford, 994 S.W.2d at 409. And, although TRAP 31 addresses, in part, appeals from bail proceedings, we note that the Rules of Appellate Procedure do not establish jurisdiction of courts of appeals, see Olivo v. State, 918 S.W.2d 519, 523 (Tex.Crim.App. 1996), and cannot create jurisdiction where none exists. See State v. Riewe, 13 S.W.3d 408, 413 (Tex.Crim.App. 2000).

We concur with the conclusions reached by the Benford and Shumake courts. We lack jurisdiction over this direct appeal from interlocutory pretrial orders refusing to lower bail pursuant to CCP 17.151. Appellant's second issue is dismissed for want of jurisdiction.CONCLUSION

We affirm.

Phil Johnson

Chief Justice

Publish.

1. Further reference to a provision of the Code of Criminal Procedure will be by reference to "CCP art._."

2. Further reference to a Rule of Appellate Procedure will be by reference to "TRAP _____."

3. To the extent appellant's first issue is based on his amended applications for writs of habeas corpus and the rights he claimed therein under CCP art. 17.151, no reference was made to the applications in his notices of appeal and no written orders were entered as to those applications. The trial court's oral pronouncement refusing to reduce appellant's bail pursuant to the amended habeas applications may not have been sufficient to comprise appealable orders under these records and given the posture of this appeal. See TRAP 25.2(b)(2) and 26.2(a)(1); State v. Kibler, 874 S.W.2d 330, 332 (Tex.App.--Fort Worth 1994, no pet.). Because of our disposition of appellant's first issue, we do not address sufficiency of the notices of appeal to invoke our jurisdiction as to the amended habeas applications, whether appealable orders existed as to the amended habeas applications, or the effect of any possible lack of appealable orders as to our jurisdiction over an issue based on the applications.

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NO. 07-10-0362-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

MAY 24, 2011

_____________________________

DAVID GRAGERT,  

                                                                                         Appellant

v.

THE STATE OF TEXAS, 

                                                                                         Appellee

_____________________________

FROM THE 140TH DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2009-425,869; HONORABLE JIM BOB DARNELL, PRESIDING

_____________________________

Memorandum Opinion

_____________________________

Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

            David Gragert was convicted of indecency by contact with his four-year-old niece.  The evidence established that he touched the child’s genitalia while locked in the bathroom with her. He seeks reversal by contending the trial court erred 1) in admitting evidence of an extraneous bad act during the guilt/innocence phase of the trial, and 2) in overruling his objection to several instances of allegedly improper prosecutorial argument.  We affirm the judgment.

Prior Notice of Bad Act

            Appellant sought to prevent the admission of evidence illustrating that he previously had bathed with the complainant, his four-year-old niece. The evidence was purportedly inadmissible because he was not afforded notice of the State’s intent to offer the bad act.[1]  Yet, appellant already knew of the act (given his involvement in it) and of the fact that the State did as well.  Indeed, he broached it in his oral confession to the police.  Furthermore, we are not told that appellant would have altered his defense, adopted different trial strategies, or presented other evidence had he been given prior notice of the State’s intent to use the incident against him.

            Instead, appellant argues that detrimental surprise arose from the manner in which the prosecutor attempted to convince the court that the incident did not depict a bad act.  Even if we were to assume that the prosecutor tried to somehow dupe the trial court into believing that the incident did not evince a bad act, that would not affect the type of harm sought to be avoided by the rule requiring prior notice.  As explained in Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005), the harm related to surprise which effectively denied the accused opportunity to prepare a means to address the evidence or ameliorate its impact. Id. at 825-26.  Simply arguing that the trial court somehow was mislead into believing prior disclosure was unnecessary because the evidence was not of a bad act implicates neither of those concerns.  So, given the circumstances before us and the absence of any indicia of surprise, we, like the court in Hernandez, have no basis to conclude that the State’s failure to afford appellant prior notice was harmful and, therefore, overrule the issue.     

            Admissibility Under Rules 402, 403 and 404

            Appellant next contends that evidence of the bathing incident was inadmissible due to its irrelevance, prejudicial nature, and depiction of a prior bad act.  Tex. R. Evid. 402 (stating that irrelevant evidence is inadmissible); Tex. R. Evid. 403 (stating that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice); Tex. R. Evid. 404(b) (stating that evidence of other crimes, wrongs, or acts is inadmissible to prove the character of a person in order to show action in conformity with that character). We overrule the contention for the following reasons.

            First, article 38.27 of the Code of Criminal Procedure, which applies to the prosecution of an offense against a child under seventeen years of age, provides that, notwithstanding Rule of Evidence 404, evidence of other wrongs or acts committed against the child shall be admitted for its bearing on matters such as the state of mind of the defendant and the child and the previous and subsequent relationship between the two.  Tex. Crim. Proc. Code Ann. art. 38.37 §§1 & 2 (Vernon Supp. 2010).  No one denies that the evidence in question involved an incident between a 25-year-old man and a four-year-old child.  Nor does anyone deny that the same four-year-old child was the victim in the crime for which appellant was being prosecuted.  And, one would be hard-pressed to deny that the bathing incident (and its admitted sexual connotation) evinces the nature of appellant’s relationship with and mindset towards his niece.  Thus, we cannot say that the trial court abused its discretion in admitting it, given article 38.37.  See Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007) (stating that a trial court abuses its discretion when its decision falls outside the zone of reasonable disagreement); see also Brown v. State, 6 S.W.3d 571, 577-79 (Tex. App.–Tyler 1999, pet. ref’d) (holding that the trial court did not abuse its discretion by admitting evidence that the defendant had previously asked the victim of the sexual assault for a kiss and touched her buttocks as probative of the state of mind of the defendant and the victim).           As for the evidence having insufficient probative value when compared to its alleged prejudicial effect, we again refer to the sections of article 38.37 mentioned above.  The legislature deemed evidence of that ilk as relevant.  So, we cannot consider it irrelevant.  Additionally, a limiting instruction was provided in the court’s charge to lessen the risk of impermissible impact.  Finally, it is difficult to say that informing the jury of the event had any more impact than the circumstances underlying the indecency for which he was prosecuted.  At the very least, one could reasonably debate whether the alleged prejudicial nature of disclosing the bathing incident substantially outweighed the probative value inherent in the evidence.  And, because of that, we cannot say that the trial court abused its discretion in rejecting the Rule 403 challenge.    

            Jury Argument

            Through his remaining issues, appellant challenges three different arguments made to the jury during the punishment phase.  At trial, he objected to each as being outside of the record. We overrule the issues for several reasons.

            First, the grounds urged before us as supporting his claim of error differ from those mentioned below.  Here, appellant argues that the State was engaging in “fear mongering.”  Without appellant explaining to the trial court how interjecting matter outside the scope of the evidentiary record equated with “fear mongering,” we find it difficult to say that the trial court should have interpreted the actual objection as including “fear mongering.” This, in turn, means that appellant did not preserve his “fear mongering” contention for review.  See Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (stating that the grounds asserted at trial must comport with those on appeal, otherwise the contention is waived).

            Second, there are four permissable areas of jury argument.  They include 1) summarizing the evidence, 2) making reasonable deductions from the evidence, 3) answering argument of opposing counsel, and 4) pleading for law enforcement.  Cannady v. State, 11 S.W.3d 205, 213 (Tex. Crim. App. 2000).  The arguments in question can be interpreted as falling within at least one of those permissible areas, as we now illustrate.

            Through the first utterance, the State said:

            . . . The defendant is 25 years old.  In two years he will be 27.  In five years he      will be 30, in 20 he will be 35. [sic] 20 years he will be 45.

            Look at this from this perspective.  In two years [the victim] will be eight.  In five, she will be 11.  [I]n 10 she will be 16, learning how to drive.  In 20 years, in 20 years she will be 26 years old. At what point do you think she will be able to defend herself from this man?

Rhetorical questions, such as this, are generally within the scope of jury argument if based on reasonable deductions from the evidence.  Wolfe v. State, 917 S.W.2d 270, 280 (Tex. Crim. App. 1996).  And, the State is afforded a wide degree of latitute in drawing reasonable deductions from the evidence so long as the inferences are reasonable, fair, legitimate, and offered in good faith.  Gaddis v. State, 753 S.W.2d 396, 398 (Tex. Crim. App. 1988); Strahan v. State, 306 S.W.3d 342, 350 (Tex. App.–Fort Worth 2010, pet. ref’d).  The aforementioned utterance can be deemed a reasonable inference or deduction given the evidence of the age of both appellant and his victim.  Thus, the analysis of their respective ages at different times in the future was a reasonable inference from the record.  Because appellant was the victim’s uncle, one could also reasonably deduce that he might someday be in attendance at family functions.  Indeed, the child’s mother testified that, after the incident at bar, the child’s grandmother took the child to see a movie, and appellant went with them.  To that, we had appellant’s own admission that he had “urges” that he had to control.  So, the prospect of the child again being at risk while in the presence of appellant was not improper argument outside the record’s scope.   

            The next two utterances consisted of the following:

            You are looking now at a range of two to 20. There is abolutely nothing that says you have to start at two and build your way up.  And every time you            start at that 20 and every time you think about coming off of it, when you say - - your mind goes to David and you wonder where he is going to be, think about this.  Do you want to see a headline with a picture of Mr. Gragert right next to the words “Defender commits assault again”?

*           *           *

                        You can punish somebody for what they did yesterday, what they did

            today, and what they might do tomorrow. 

                        Do you ever want to pick up the A-J and see that this man had done it

            again?

The remarks suggest that appellant may repeat his crimes.  And, there was evidence presented indicating that he had been unsuccessful in controlling his “urges.”  Given this, we find that the argument constituted a lawful plea for law enforcement. Indeed, we previously held argument suggesting that the accused may offend again to be  allowable.  Watson v. State, 760 S.W.2d 756, 759-60 (Tex. App.–Amarillo 1998, pet. ref’d); accord McBride v. State, 706 S.W.2d 723, 729 (Tex. App.–Corpus Christi 1988, pet. ref’d) (holding argument that if the jury made a mistake, “they might bury somebody else” was a proper plea for law enforcement).  

            Having overruled all issues, we affirm the judgment.

                                                                        Brian Quinn

                                                                        Chief Justice

Do not publish.

---

[1]There was much debate about whether a 25-year-old man bathing naked with a four-year-old girl constituted a bad act. Whether it inherently is or is not matters little.  This is so because the prosecution certainly used it to portray appellant in a bad light. Given that, we will assume arguendo that the event was evidence of a prior bad act.