David Anthony Aguilar, Jr. v. the State of Texas ( 2021 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-20-00056-CR
David Anthony AGUILAR, Jr.,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2018CR1185
Honorable Velia J. Meza, Judge Presiding
Opinion by: Irene Rios, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Irene Rios, Justice
Delivered and Filed: June 30, 2021
AFFIRMED
A jury convicted appellant David Aguilar of continuous sexual abuse of a child younger
than fourteen years of age. Aguilar raises eight issues on appeal. We affirm.
BACKGROUND
Aguilar’s stepdaughter, Amy, accused him of repeatedly engaging in various sexual acts
with her over a two-year period. 1 Subsequently, Amy’s cousin, Karen, revealed she also had been
1
We refer to Aguilar’s stepdaughter with the pseudonym, Amy.
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forced to engage in sexual acts with Aguilar during the same period of time. 2 Amy and Karen
were both less than fourteen years old during the period they claimed the sexual encounters
occurred.
Aguilar was charged with one count of continuous sexual abuse of a child younger than
fourteen years of age and two counts of indecency with a child by sexual contact. The jury found
Aguilar guilty of continuous sexual abuse of a child younger than fourteen years of age and not
guilty on the two counts of indecency with a child by sexual contact. The trial court sentenced
Aguilar to thirty years’ confinement, and he is ineligible for parole. See TEX. GOV’T CODE ANN.
§ 508.145(a) (stating a defendant who is convicted of continuous sexual abuse of a child younger
than fourteen years of age is not eligible for parole). This appeal followed.
DISCUSSION
In eight issues, Aguilar argues: (1) the trial court abused its discretion when it overruled an
argumentative objection; (2) allegedly improper questions, remarks, and jury argument cumulated
to prosecutorial misconduct; (3) the legislative sentencing scheme for continuous sexual abuse of
a child violates constitutional prohibitions against cruel and unusual punishment; (4)-(5) the trial
court abused its discretion, and denied Aguilar the right to present a defense, when it denied his
oral motion for a continuance on the first day of trial; (6)-(7) the trial court abused its discretion,
and denied Aguilar the right to present a defense, when it granted the State’s motion in limine
regarding Amy’s biological father’s status as a registered sex offender; and (8) the cumulative
effect of these errors denied Aguilar a fair trial.
2
We refer to Amy’s cousin with the pseudonym, Karen.
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ARGUMENTATIVE OBJECTION AND PROSECUTORIAL MISCONDUCT
In his first and second issues, Aguilar combines several arguments that he claims amount
to repeated prosecutorial misconduct. First, Aguilar argues the trial court erred when it overruled
his argumentative objection. Next, Aguilar argues the line of questioning following his overruled
objection was improper and constituted prosecutorial misconduct. Also within his first two issues,
Aguilar argues the prosecutor made improper remarks when cross-examining Aguilar and another
defense witness, and the prosecutor engaged in improper jury argument. Although Aguilar did not
make a single objection to prosecutorial misconduct at trial, he claims the prosecutor’s conduct
undermined his right to a fair trial and, thus, rose to the level of fundamental error that does not
need to be preserved at trial to be reviewed on appeal. We disagree.
At the outset, we note Aguilar has presented us with a multifarious issue by combining
several contentions into two merged issues. An issue is multifarious if it combines more than one
contention in a single issue. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). A
multifarious issue presents nothing for review and may be overruled on that basis alone. See
County v. State, 812 S.W.2d 303, 308 (Tex. Crim. App. 1989). However, in the interest of justice,
we consider Aguilar’s contentions as sub-issues. See Prihoda v. State, 352 S.W.3d 796, 801 (Tex.
App.—San Antonio 2011, pet. ref’d) (“As an appellate court, we may refuse to review a
multifarious issue or we may elect to consider the issue if we are able to determine, with reasonable
certainty, the alleged error about which the complaint is made.”).
Argumentative Objection and Subsequent Questions
Aguilar chose to testify in his own defense, and he now complains the trial court erred
when it permitted the State to question him concerning his ability to aid in his defense and the
relevancy of his prior testimony on direct examination.
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“We review a trial court’s decision to admit evidence over objection under an abuse-of-
discretion standard and will not reverse that decision absent a clear abuse of discretion.” McCarty
v. State, 257 S.W.3d 238, 239 (Tex. Crim. App. 2008). “The trial court abuses its discretion when
the decision lies outside the zone of reasonable disagreement.” Id.Aguilar argues the questions the State asked him on cross-examination inferred he was
raising irrelevant information, interjected the prosecutor’s personal opinion on the evidence,
invaded the attorney-client and work-product privileges, prevented Aguilar’s right to present a
defense, and forced Aguilar to defend his credibility. Aguilar fails to explain how the State’s
questions resulted in the errors about which he now complains. Also, Aguilar did not make a
single objection to the trial court based on these complaints and any error on those bases has not
been preserved for review. TEX. R. APP. P. 33.1(a); see also Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002) (“To preserve error for appellate review, the complaining party must make
a specific objection and obtain a ruling on the objection.”); Little v. State, 758 S.W.2d 551, 563
(Tex. Crim. App. 1988) (“[I]t is clear that a failure to object in a timely and specific manner during
trial will waive error in the admission of evidence . . . [;] this is true even though the error may
concern a constitutional right of the defendant.”).
Aguilar lodged an argumentative objection to only one of the many questions he now
complains about and did not obtain a running objection. As such, any complaints concerning
questions that did not draw an objection have also not been preserved for review. See Valle v.
State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003) (holding to preserve error in admitting
evidence, “a party must object each time the inadmissible evidence is offered or obtain a running
objection”).
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As to the complaint that was preserved, Aguilar argues the trial court erred when it
overruled his argumentative objection while he was being cross-examined by the State in the
following exchange:
State: Okay. So I guess I’m struggling to figure out why you chose to
testify about [Karen’s mom] dating some guy and it was your
opinion that she was just trying to get [Amy’s mom] to watch
[Karen] so she could go out on a date?
Aguilar: It was asked why was [Karen] staying with us all the time and at the
end why she wasn’t.
State: Okay. So you have nothing to do with your own defense and the
questions that get asked of you?
Defense: Judge, I’m going to object to that as argumentative.
Court: Overruled.
Aguilar: What are you trying to say?
State: Well, yeah, I mean, you’ve been assisting in your own defense.
Right?
Aguilar: I’m talking for myself, yes, sir.
“A question is argumentative if it is merely an effort by counsel to make a jury argument,
to summarize, draw inferences from, or comment on the evidence, or to ask the witness to testify
as to his own credibility.” 2A STEVEN GOODE & OLIN GUY WELLBORN III, TEXAS PRACTICE
SERIES: COURTROOM HANDBOOK ON TEXAS EVIDENCE OBJ 2. Argumentative Question (Rule
611(a)) (2021).
The question complained of here was not an attempt to make a jury argument nor was it a
summation or comment on the evidence. In the question that was objected to, the prosecutor asked
if Aguilar aided his counsel in the preparation of his defense. Aguilar has failed to show us how
this question is argumentative, and we cannot say the trial court abused its discretion when it
overruled Aguilar’s argumentative objection.
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Question on Defendant’s Veracity
In the final paragraph of his argument regarding his argumentative objection, Aguilar
argues the prosecutor engaged in prosecutorial misconduct during the line of questions following
his overruled objection. Specifically, Aguilar contends the following question was an improper
comment on the truthfulness of Aguilar’s testimony:
Q. Okay. So to act like you’re woefully ignorant that you’re going to get asked
about [Karen’s mom] and her parenting style, I mean, that’s not really being truthful
with them, is it?
Aguilar did not object to this question at trial.
“To preserve error for prosecutorial misconduct, the appellant must: (1) make a
timely and specific objection; (2) request an instruction to disregard the matter improperly
placed before the jury; and (3) move for mistrial.” Hernandez v. State, 219 S.W.3d 6, 14
(Tex. App.—San Antonio 2006), aff’d, 273 S.W.3d 685 (Tex. Crim. App. 2008). Because
Aguilar did not lodge an objection to this question, he has failed to preserve this error for
review.
Moreover, Aguilar’s argument is premised on the assumption that the prosecutor
made a matter-of-fact assertion regarding Aguilar’s truthfulness. Cf. Temple v. State,
342 S.W.3d 572, 597 (Tex. App.—Houston [14th Dist.] 2010), aff’d, 390 S.W.3d 341(Tex. Crim. App. 2013) (holding the prosecutor engaged in misconduct when he “accused
appellant of being a liar, not indirectly through a question, but as a matter-of-fact
assertion”). Here, the prosecutor’s alleged accusation came in the form of a question, not
as a matter-of-fact assertion. Accordingly, Aguilar’s argument is without merit.
Side Bar Comment
Aguilar called Jaelynda Prothero, who was his neighbor during the time period that the
sexual abuse occurred, to testify. On cross-examination, the State asked whether Aguilar still used
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the bed Prothero had given him or whether he had replaced it. In response to questions posed by
the State, Prothero testified as follows:
Prothero: That bed is the bed that Mr. Aguilar still sleeps in to this day, sir.
State: Okay. So you know what’s in his bedroom?
Prothero: Yes, sir.
State: Okay. That’s interesting. Okay.
Aguilar objected to the State’s comments as sidebar remarks. See Jimenez v. State,
240 S.W.3d 384, 404 (Tex. App.—Austin 2007, pet. ref’d) (“Sidebar remarks are remarks of
counsel that are neither questions to the witness nor comments addressed to the court.”). The trial
court sustained the objection and Aguilar did not request any further relief.
The general prerequisite to presenting a complaint on appellate review is a showing that a
timely and specific objection, request, or motion was pursued to an adverse ruling, or the trial court
refused to rule on the complaint. Tucker v. State, 990 S.W.2d 261, 262 (Tex. Crim. App. 1999);
see also TEX. R. APP. P. 33.1(a). “To reach the level of an adverse ruling, if the objection is
sustained, counsel must then ask for an instruction to disregard.” Schumacher v. State, 72 S.W.3d
43, 47 (Tex. App.—Texarkana 2001, pet. ref’d) (citing Nethery v. State, 692 S.W.2d 686, 701
(Tex. Crim. App. 1985)). “If counsel does not pursue the objection to an adverse ruling, error is
not preserved.” Schumacher, 72 S.W.3d at 47 (citing Ramirez v. State, 815 S.W.2d 636, 643 (Tex.
Crim. App. 1991)). When the objection is sustained, and no further relief is requested, nothing is
preserved for review. See Turner v. State, 805 S.W.2d 423, 431–32 (Tex. Crim. App. 1991)
(holding appellant failed to preserve error when he obtained all relief requested from the trial court
and did not pursue his complaint to an adverse ruling).
Here, Aguilar did not pursue his complaint to an adverse ruling. Because the trial court
sustained Aguilar’s sidebar objection, and he requested no further relief, there is nothing presented
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for us to review on appeal. See Fuller v. State, 501 S.W.2d 112, 114 (Tex. Crim. App. 1973)
(“[A]ppellant’s objection was sustained without any further relief requested. Nothing is presented
for review.”); Temple, 342 S.W.3d at 595 (“[T]he trial court committed no error because it granted
appellant all the relief he requested.”); Badall v. State, 216 S.W.3d 865, 872 (Tex. App.—
Beaumont 2007, pet. ref’d) (“Because [appellant’s] objection[s] . . . were sustained, and he
requested no further relief, nothing has been preserved for review on appeal.”).
Jury Argument
We next consider Aguilar’s contention that two statements made by the prosecutor during
closing arguments were improper.
In closing argument, defense counsel argued Amy “would have done something to make it
stop” if she was being repeatedly sexually abused by Aguilar. Therefore, defense counsel
concluded, the sexual abuse never occurred because Amy did not tell anyone until several years
later. In rebuttal argument, the State responded:
Look, [defense counsel is] my friend and I’ve known him for years. We’ve tried
several cases together. You know what, I don’t care. To blame her and to say that
somehow she should have taken responsibility to stop her own dad from raping her
is insulting. I’m going to leave it at that because it, frankly, makes my blood boil.
Aguilar also complains about the following argument from the State:
Ms. Prothero trusts the Defendant with her daughters. I think her trust is misplaced,
but, you know what, just because he didn’t molest the kids that we know of, that he
doesn’t have constant access to, like he did back when he was [Amy’s] dad and
[Karen’s] uncle, doesn't absolve him of what he did to them.
At trial, Aguilar did not object to either of the jury arguments he now complains about on appeal.
“To preserve error in prosecutorial argument, a defendant must pursue to an adverse ruling
his objections to jury argument.” Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007).
Aguilar was required to object to the State’s comments that he deemed improper. Because Aguilar
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neglected to make a single objection during the State’s closing argument, he has failed to preserve
this issue for review on appeal.
Aguilar concedes he failed to preserve error in many of the instances he now complains
about on appeal. Aguilar argues, however, this is one of the rare cases where we may take notice
of fundamental errors affecting substantial rights even though they were not brought to the
attention of the trial court. See, e.g., Blue v. State, 41 S.W.3d 129, 132–33 (Tex. Crim. App. 2000)
(plurality opinion) (holding defendant’s failure to object to trial judge’s comments did not waive
error when the trial judge, prior to trial, told the venire he preferred the defendant plead guilty and
tainted the defendant’s presumption of innocence). Aguilar argues the prosecutor’s “serious and
continuing prosecutorial misconduct” resulted in a fundamentally unfair trial. Aguilar has failed
to show us how any of the unobjected to instances here rise to the level of fundamental error.
Contrary to Aguilar’s contention, we do not think the prosecutor’s questions or closing remarks
resulted in a fundamentally unfair trial.
Accordingly, Aguilar’s first and second issues are overruled.
CRUEL AND UNUSUAL PUNISHMENT
In his third issue, Aguilar argues his sentence for continuous sexual abuse of a child under
fourteen years of age violates the prohibition against cruel and unusual punishment under the
Eighth Amendment of the United States Constitution and article I, section 13 of the Texas
Constitution. 3 Section 21.02 of the Texas Penal Code sets the imprisonment punishment range for
a person convicted of continuous sexual abuse of a child at a “term of not more than 99 years or
3
Although his third issue mentions both the United States and Texas constitutions, Aguilar’s brief only argues
violations of the Eighth Amendment of the United States Constitution. Nevertheless, we analyze each constitutional
provision the same way. See Cantu v. State, 939 S.W.2d 627, 645 (Tex. Crim. App. 1997) (holding there is no
significant difference between the cruel and unusual punishment provisions in the United States and Texas
constitutions).
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less than 25 years.” TEX. PENAL CODE ANN. § 21.02(h). In addition, an inmate who is serving a
sentence for an offense under Section 21.02 is not eligible for release on parole. TEX. GOV’T CODE
ANN. § 508.145(a). Aguilar attacks these legislatively mandated sentencing requirements claiming
they categorically deny parole eligibility to an entire class of offenders. Aguilar argues the
sentence is disproportionate to the crime because a person convicted of murdering a child would
have an imprisonment punishment range between five and ninety-nine years and would be eligible
for parole. 4 See TEX. PENAL CODE ANN. § 12.32; TEX. GOV’T CODE ANN. § 508.145(d)(1). We
disagree with Aguilar’s argument. See Glover v. State, 406 S.W.3d 343, 347 (Tex. App.—
Amarillo 2013, pet. ref’d) (“The constitutionality of a given punishment scheme cannot . . . be
determined by simply comparing the punishment schemes applicable to two or more offenses for
purposes of making a ‘proportionality review.’”).
The State argues this issue was not preserved for review on appeal. As a prerequisite to
presenting a complaint for appellate review, the record must show the complaint was made to the
trial court by a timely request, objection, or motion that was pursued to an adverse ruling. TEX. R.
APP. P. 33.1(a); Reynolds v. State, 430 S.W.3d 467, 471 (Tex. App.—San Antonio 2014, no pet.)
(“To preserve a complaint that a sentence is grossly disproportionate, constituting cruel and
unusual punishment, a defendant must present to the trial court a motion stating the specific
grounds for the ruling desired.”). Even constitutional errors may be forfeited on appeal if an
appellant failed to object at trial. Garza v. State, 435 S.W.3d 258, 260–61 (Tex. Crim. App. 2014).
Here, during closing argument of the punishment phase of trial, Aguilar objected to the
punishment scheme for continuous sexual abuse of a child. We construe Aguilar’s objection as a
4
Citing Coker v. Georgia, 433 U.S. 584, 592 (1977), Aguilar argues murder is a much worse offense than continuous
sexual abuse of a child, but could result in a lesser sentence since one convicted of murder is eligible for parole.
Aguilar fails to recognize that the murder of a child under ten years of age can be a capital offense thereby rendering
parole unavailable. See TEX. PENAL CODE ANN. § 19.03(a)(8); Id. § 12.31(a); TEX. GOV’T CODE ANN § 508.145(a).
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complaint that the punishment scheme at issue is unconstitutional. The State argues Aguilar did
not pursue this objection to an adverse ruling and has, therefore, waived review. Because the
question is not dispositive, we presume without deciding the trial court implicitly overruled
Aguilar’s objection when it signed a judgment consistent with the punishment scheme at issue.
See TEX. R. APP. P. 33.1(a)(2) (stating the trial court may implicitly rule on an objection).
Both the United States and Texas constitutions prohibit cruel and unusual punishment. See
U.S. CONST. amend. VIII (prohibiting “cruel and unusual punishment”); TEX. CONST. art. I, § 13
(prohibiting “cruel or unusual punishment”). We analyze federal and state constitutional
complaints regarding cruel and unusual punishment in the same way. Cantu v. State, 939 S.W.2d
627, 645 (Tex. Crim. App. 1997). The constitutional prohibition against cruel and unusual
punishment prohibits “punishments that are grossly disproportionate to the severity of the crime
as well as punishments that do not serve any penological purpose.” Bucklew v. Precythe, — U.S.
—, 139 S. Ct. 1112, 1144 (2019) (quotations omitted). A sentence that falls within the statutory
range of punishment is generally constitutional. State v. Simpson, 488 S.W.3d 318, 323 (Tex.
Crim. App. 2016). However, “a narrow proportionality principle applicable to non-capital cases
has evolved concerning a punishment scheme’s ‘categorical’ application to ‘an entire class of
offenders.’” McCain v. State, 582 S.W.3d 332, 338 (Tex. App.—Fort Worth 2018, no pet.)
(quoting Graham v. Florida, 560 U.S. 48, 61, 67 (2010)). “When faced with [] a categorical
challenge, the judiciary, in determining whether the punishment at issue is grossly disproportionate
to the offense, must consider: (1) whether there is a national consensus against imposing the
punishment for the offense; (2) the moral culpability of the offenders at issue in light of their
crimes and characteristics; (3) the severity of the punishment; and (4) whether the punishment
serves legitimate penological goals.” Meadoux v. State, 325 S.W.3d 189, 194 (Tex. Crim.
App. 2010); see also McCain, 582 S.W.3d at 338–46 (applying the Meadoux test when defendant
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argued the punishment scheme for continuous sexual abuse of a child violated the constitutional
prohibitions against cruel and unusual punishment); Glover, 406 S.W.3d at 348–50 (same).
Several of our sister courts have directly addressed and rejected the argument Aguilar
presents here. See McCain, 582 S.W.3d at 346 (“Having weighed all four [Meadoux] factors, we
hold that the punishment scheme for section 21.02 does not constitute cruel and unusual
punishment under the United States and Texas constitutions.”); Glover, 406 S.W.3d at 348–50
(holding the sentencing scheme for offenders who have committed the offense of continuous
sexual abuse does not violate constitutional prohibitions against cruel and unusual punishment);
DeLeon v. State, No. 03-13-00202-CR, 2015 WL 3454101, at *8–9 (Tex. App.—Austin May 29,
2015, pet. ref’d) (mem. op., not designated for publication) (same). We agree with their analyses.
National Consensus
Aguilar points to the great diversity between punishment schemes in states that have a
continuous sexual abuse statute to argue there is not a national consensus on the proper punishment
for this offense. However, the first Meadoux factor asks “whether there is a national consensus
against imposing the punishment for the offense[,]” not whether there is a national consensus on
the proper punishment for this offense. Meadoux, 325 S.W.3d at 194 (emphasis added). The fact
that there is not a national consensus on the proper punishment for this offense supports the
proposition that there is not a national consensus against a punishment range of twenty-five to
ninety-nine years without parole. Thus, this factor weighs in favor of the constitutionality of the
punishment scheme at issue. See McCain, 582 S.W.3d at 344 (holding there is not a national
consensus against long minimum sentences and ineligibility for parole for those who commit the
offense of continuous sexual abuse against a child).
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Moral Culpability
Despite its recognition that murder is a more serious offense than other serious violent
offenses, the Glover court held “the nature of the offense [of continuous sexual abuse of a child],
the vulnerability of the [child] victims, and the repetitive nature of the offense” cause the moral
culpability factor to weigh in favor of the constitutionality of a sentence with no eligibility for
parole. Glover, 406 S.W.3d at 348–49. We agree with the Glover court’s reasoning and hold the
moral culpability factor weighs in favor of the constitutionality of a minimum twenty-five-year
sentence without possibility for parole for those who commit the offense of continuous sexual
abuse of a child. See id.; see also McCain, 582 S.W.3d at 345, 346 (holding moral culpability
factor weighs in favor of punishment scheme for continuous sexual abuse of a child).
Severity of the Punishment
“A lengthy term of years without the possibility of parole is a severe penalty.” Glover,
406 S.W.3d at 349. However, the punishment scheme for continuous sexual abuse of a child is
not categorically offensive when compared to the available punishment ranges for Section 21.02
component offenses. 5 Aguilar could have received much greater sentences than the thirty-year
sentence he received here had any of the component offenses in this case been tried independently.
See McCain, 582 S.W.3d at 345–46. Therefore, the severity of punishment factor weighs in favor
of the punishment scheme’s constitutionality. See id. But see Glover, 406 S.W.3d at 349, 350
(holding the severity of punishment factor “arguably weigh[s] in favor of the unconstitutionality
5
Each component offense that can support a section 21.02 conviction is either a first-degree or second-degree felony.
See TEX. PENAL CODE ANN. § 21.02(c) (listing component offenses, among others, as: indecency with a child by
contact; sexual assault; and aggravated sexual assault). First-degree felonies carry a punishment range of five to
ninety-nine years. Id. § 12.32(a). Second-degree felonies carry a punishment range of two to twenty years. Id.
§ 12.33(a).
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of this particular sentencing scheme” but nevertheless concluding the punishment scheme was
constitutional when the other Meadoux factors were considered).
Penological Goals
“Retribution, deterrence, incapacitation, and rehabilitation are four legitimate goals of
criminal sanctions.” McCain, 582 S.W.3d at 346. For example, recidivist statutes—such as
Section 12.42 of the Texas Penal Code—“were enacted to protect citizens against habitual
offenders.” Glover, 406 S.W.3d at 349. “Similarly, the [l]egislature’s decision to deny parole to
persons convicted of continuous sexual abuse of a child protects child victims against continuous
sexual attacks.” Id. “[T]he penological interests of both deterrence and incapacitation are served
by the sentencing scheme in question.” Id. at 350; see also McCain, 582 S.W.3d at 346 (holding
the punishment scheme for those who commit the offense of continuous sexual abuse of a child
serves the penological interests of deterrence and incapacitation).
Having weighed all four Meadoux factors, we agree with our sister courts and hold the
punishment scheme for continuous sexual abuse of a child does not constitute cruel and unusual
punishment under the United States and Texas constitutions. See McCain, 582 S.W.3d at 346;
Glover, 406 S.W.3d at 350; DeLeon, 2015 WL 3454101, at *9.
Accordingly, Aguilar’s third issue is overruled.
MOTION FOR CONTINUANCE
In his fourth and fifth issues, Aguilar argues the trial court abused its discretion when it
denied his motion for continuance on the first day of trial. As a result, Aguilar argues he was
denied the opportunity to present a complete defense. The State argues Aguilar has not preserved
error because his continuance was not written or sworn.
“We review a trial court’s ruling on a motion for continuance for abuse of discretion.”
Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). “To establish an abuse of discretion,
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there must be a showing that the defendant was actually prejudiced by the denial of his motion.”
Id.In 1997, Amy’s biological father was convicted of sexual assault. Prior to voir dire, the
prosecutor obtained the State’s case file regarding the biological father’s sexual assault case. The
State immediately presented the case file to Aguilar’s counsel. Aguilar orally requested a
continuance to interview the complainant in the 1997 case “to determine whether . . . she’s capable
of providing relevant testimony in this case.” The trial court denied the motion for continuance
“for now[,]” implying Aguilar could re-urge his motion after voir dire. The State asked one of its
investigators to obtain contact information for the complainant in the 1997 case and presented the
complainant’s contact information to Aguilar’s counsel after voir dire had concluded. The trial
court asked Aguilar’s counsel to contact the complainant and to report back to the court the next
morning. Aguilar did not re-urge his motion for continuance.
Before we address the merits of Aguilar’s complaint, we must first determine whether he
preserved the complaint for our review. See Blackshear v. State, 385 S.W.3d 589, 591 (Tex. Crim.
App. 2012). Article 29.03 of the Texas Code of Criminal Procedure provides: “A criminal action
may be continued on the written motion of the . . . defendant, upon sufficient cause shown[.]” TEX.
CODE CRIM. PROC. ANN. art. 29.03. Article 29.08 further provides: “All motions for continuance
must be sworn to by a person having personal knowledge of the facts relied on for the
continuance.” Id. art. 29.08. The Texas Court of Criminal Appeals has “construed these statutes
to require a sworn written motion to preserve appellate review from a trial judge’s denial of a
motion for a continuance.” Anderson v. State, 301 S.W.3d 276, 279 (Tex. Crim. App. 2009),
declined to follow on other grounds, Grado v. State, 445 S.W.3d 736, 741 n.29 (Tex. Crim.
App. 2014); see also Cruz v. State, 565 S.W.3d 379, 381 (Tex. App.—San Antonio 2018, no pet.)
(recognizing a denied motion for continuance must be written and sworn to preserve appellate
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review). “Thus, if a party makes an unsworn oral motion for a continuance and the trial judge
denies it, the party forfeits the right to complain about the judge’s ruling on appeal.” Anderson,
301 S.W.3d at 279.
Here, Aguilar’s motion was neither written nor sworn. Accordingly, Aguilar has forfeited
his right to complain about the trial court’s ruling on appeal. See id. Aguilar acknowledges his
motion for continuance was neither written nor sworn, but asks this court to institute a due process
exception relieving him of these procedural requirements because he was deprived of the
opportunity to present a complete defense. However, the Court of Criminal Appeals has
“explicitly refused to recognize a due process exception to the rule requiring motions for
continuances to be written and sworn in order to be preserved on appeal.” Blackshear, 385 S.W.3d
at 591. Additionally, “precedent clearly establishes that the right to present a complete defense
falls within [the category of rights that are] subject to forfeiture.” Anderson, 301 S.W.3d at 280.
Therefore, by making an unsworn, oral motion for continuance, Aguilar failed to preserve his claim
for appellate review.
Accordingly, Aguilar’s fourth and fifth issues are overruled.
EXCLUSION OF EVIDENCE REGARDING ALTERNATIVE PERPETRATOR
In his sixth and seventh issues, Aguilar argues the trial court erred when it granted the
State’s motion in limine regarding Amy’s biological father’s status as a registered sex offender.
The State anticipated Aguilar would elicit testimony on this fact to promote a defensive theory that
Amy’s biological father was the perpetrator of the sexual abuse, not Aguilar. Before opening
statements, the State made an oral motion in limine asking Aguilar—prior to eliciting this
testimony from any witness—be required to establish the relevance of the biological father’s status
as a sex offender, and the associated criminal conduct, outside the presence of the jury. The trial
court granted the motion and required the parties to have a hearing outside the presence of the jury
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before the defense elicited testimony regarding the biological father’s status as a registered sex
offender.
“Trial court decisions to admit or exclude evidence will not be reversed absent an abuse of
discretion.” Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim. App. 2018). “Under this standard,
the trial court’s decision to admit or exclude evidence will be upheld as long as it was within the
zone of reasonable disagreement.” Id. (quotations omitted).
The Texas Court of Criminal Appeals has “held that a ruling on a State’s motion in limine
that excludes defense evidence is subject to reconsideration throughout trial and that to preserve
error[,] an offer of the evidence must be made at trial.” Warner v. State, 969 S.W.2d 1, 2 (Tex.
Crim. App. 1998). Thus, by itself, “[a] ruling granting a motion in limine does not preserve error
on appeal.” Garcia v. State, 106 S.W.3d 854, 857 (Tex. App.—Houston [1st Dist.] 2003, pet.
ref’d) (citing Wilkerson v. State, 881 S.W.2d 321, 326 (Tex. Crim. App. 1994)). “To preserve
error regarding the exclusion of evidence, the defendant must offer the evidence at trial and obtain
an adverse ruling from the trial court.” Leyba v. State, 416 S.W.3d 563, 574 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d) (citing Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim. App.
2007)). “The failure to perform any of these requirements results in forfeiture of an appellate
complaint.” Leyba, 416 S.W.3d at 574.
Here, the trial court’s ruling on the State’s motion in limine did not preserve error for the
exclusion of evidence regarding the biological father’s status as a registered sex offender. Aguilar
did not request a specific ruling—or obtain an adverse ruling—on the admissibility of the evidence
and did not offer the evidence at trial. Because Aguilar failed to obtain an adverse ruling on the
exclusion of the evidence or make an offer of proof, he has forfeited his complaint on appeal. See
id. (holding motion in limine excluding evidence did not preserve the issue for appellate review
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when the defendant failed to offer the evidence at trial, obtain an adverse ruling, and make an offer
of proof).
Accordingly, Aguilar’s sixth and seventh issues are overruled.
CUMULATIVE ERRORS
In his eighth issue, Aguilar contends the cumulative errors committed during trial require
reversal. Because we have concluded in each of the previous seven issues raised on appeal that no
error occurred or that no error was presented for our review, there is no harm to accumulate. See
Murphy v. State, 112 S.W.3d 592, 607 (Tex. Crim. App. 2003) (“Because we have found little or
no error in the above-alleged points, there is no harm or not enough harm to accumulate.”).
Accordingly, Aguilar’s eighth issue is overruled.
CONCLUSION
The judgment of the trial court is affirmed.
Irene Rios, Justice
Do not publish
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