Humberto Ortiz Balderas v. the State of Texas ( 2023 )

In the
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00024-CR
HUMBERTO ORTIZ BALDERAS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 28545
Before Stevens, C.J., van Cleef and Rambin, JJ.
Memorandum Opinion by Justice van Cleef
Memorandum Opinion Concurring In Part and Dissenting In Part by Justice Rambin
MEMORANDUM OPINION
After a jury found Humberto Ortiz Balderas guilty of continuous sexual abuse of a young
child (Count I), indecency with a young child by exposure (Count III), and two counts of sexual
assault of a young child (Counts IV and V),1 the trial court sentenced him to confinement in
prison for thirty years, five years, ten years, and ten years, respectively. The trial court ordered
Balderas’s sentences to run consecutively. Balderas appeals, maintaining that (1) the evidence
was insufficient to support his conviction for continuous sexual abuse of a young child, (2) the
trial court’s jury instructions contained error causing him egregious harm, (3) the trial court erred
by bolstering the State’s case when it read back testimony to the jury during its deliberations, and
(4) the trial court’s judgments of conviction contained factual errors.
Because we find that there was insufficient evidence to support Balderas’s conviction for
continuous sexual abuse of a young child, we reverse the trial court’s judgment of conviction as
to Count I.2 Further, we sustain Balderas’s third point of error and reverse the judgments of
conviction as to Counts III, IV, and V. Finally, with the exception of Count I, we remand to the
trial court for a new trial consistent with this opinion.3
1
Based on the guilty verdict as to Count I, the trial court instructed the jury not to consider Count II, which was a
charge of aggravated sexual assault of a child. Count II was essentially subsumed by the jury’s guilty verdict to
Count I. See TEX. PENAL CODE ANN. § 21.02(f) (Supp.).
2
Because we find that the State did not meet its burden of sufficiently showing that P.S. was less than fourteen years
old when Balderas committed the second alleged predicate offense, we do not find it necessary (1) to address, at
length, Balderas’s remaining sufficiency argument relating to his conviction of continuous sexual abuse of a young
child or (2) to address his second point of error that the trial court’s jury instructions as to the offense of continuous
sexual abuse contained egregious harm.
3
Because we sustain Balderas’s third point of error, we find it unnecessary to address his fourth point of error.
2
I. Background
At trial, twenty-two-year-old P.S. testified that her mother, G.S., met Balderas online
when G.S. was living in Mexico and Balderas was living in the United States. When P.S. was
around eight years old,4 her mother decided to move the family to Paris, Texas, where they lived
with Balderas in a green house on East Washington Street (the green house). According to P.S.,
they lived in the green house from the time she was in third grade, around 2008, until she became
a freshman in high school, around 2014. After that, they moved to a house on Polk Street in
Paris, Texas, which P.S. described as a red brick home (the red house). P.S. explained that they
lived in Paris the entire time, except for the summer of 2011 or 2012 when G.S. and Balderas
separated and G.S. took her family to live in Houston.
P.S. explained that, during the time they lived in the green house, Balderas was “basically
[her] father figure.” According to P.S., Balderas support[ed her] all the time,” and for the most
part, they did not fight or have disagreements while they lived in the green house. Yet, after G.S.
and P.S. returned to Paris from Houston in 2011 or 2012, and while they were still living in the
green house, Balderas began touching P.S. P.S. testified that, one day, while she was on the
telephone crying because she wanted to return to Houston, Balderas “whisper[ed] to [her] so
softly . . . [a]nd he then proceeded to open [her] legs and he used his finger and . . . he started
touching [her] and [she] didn’t know what was going on so he said it’s okay, todos tambien
4
P.S. was born in June 1999.
3
(phonetic), like he was trying to calm [her] down.” In an effort to be more specific, P.S. said that
Balderas touched her vagina with his finger “[w]here [her] clitoris [was] at.”5
P.S. also explained that there had been a room in the green house that the family referred
to as a basement, and it was the room in which they did laundry.6 P.S. said that, on her way to
do laundry, Balderas “would stop [her] at the top of the steps[,] and he would feel on [her] and
touch [her].” P.S. stated that Balderas would stretch her pants and then put his finger inside and
outside of her vagina. P.S. said that Balderas had sexually abused her at other times while they
lived in the green house but that her memory about those instances was “vague.”
When P.S. was almost fifteen years old, the family moved to the red house. According to
P.S., the abuse at the red house had become a “constant thing, every Sunday from 9:00 to 5:00,
because [her] mom worked from 9:00 to 5:00.” P.S. said that the ongoing abuse began her junior
year of high school and that it did not stop until she left for college. While living in the red
house, Balderas would “feel upon [her],” even when the family was there. P.S. said that, if she
was menstruating, Balderas would masturbate behind her and that she could “fe[el] his penis by
[her] butt.” Balderas would ground P.S. because she did not clean herself “down there good
enough[.]” P.S. said that she purposefully stopped cleaning herself to discourage Balderas’s
abuse.
When P.S. was fifteen, Balderas taught her how to drive a car. According to P.S.,
Balderas would take her driving on the “back” roads. On one occasion, Balderas told P.S. that
5
We will refer to this alleged assault as the first predicate offense.
6
At some point, P.S. began using the room as her bedroom.
4
she had “to be able to focus on the road all the time, no matter what happen[ed].” Balderas then
masturbated while P.S. was driving. After the driving lesson was over and the pair had gone
back to the red house, Balderas told P.S. “to lay down on the pool table and open [her] legs, and
that was the first time he gave [her] oral and put his tongue in [her] vagina.”
In 2018, during her first semester of college, Balderas called P.S. while she was
participating in a Bible study. P.S. said Balderas was “flipping out about something.” After she
discontinued the telephone call, Balderas repeatedly texted P.S., making her cry. When P.S. left
the Bible study, she contacted her roommate, who was the “only person that [she] could trust[,]”
and P.S. told her about the abuse that she had suffered. Even at that point, P.S. did not file a
police report because it was “hard to separate [the] abuser from a dad figure.” P.S. eventually
went to see a college counselor because she needed to talk with someone about the abuse so that
she could “let it out.” Despite her counselor’s encouragement, P.S. still did not report the abuse
to law enforcement.
Around the middle of July 2019, P.S. informed her mother that she had been abused by
Balderas “ever since [she could] remember.” P.S. said that her mother was in shock and began
crying. According to P.S., her mother said, “[E]verything makes sense now.” That same day,
P.S. made her first police report regarding Balderas’s abuse.
After making the police report, P.S. spoke with an investigator who had her contact
Balderas by telephone; the officer recorded their conversation. During the call, P.S. told
Balderas that she had told her mother about Balderas sexually abusing her. According to P.S.,
she asked Balderas if he was aware of what he had done to her, and he responded, “[Y]es, yes
5
(inaudible).” P.S. said that Balderas never denied that he abused her. P.S. explained that, when
she asked Balderas why he treated her that way, Balderas told her that her “version of a dad
[was] wrong[.]” She continued, “He said the way he loved me was his way.”
Eventually, P.S. sought counseling. On May 2, 2019, when P.S. was nineteen years old,
she reported to her counselor that Balderas began sexually abusing her when she was around
twelve years old and that he stopped abusing her when she was around eighteen years old. P.S.
had been diagnosed with post-traumatic stress disorder, clinical depression, anxiety, and
attention-deficit/hyperactivity disorder, and as a result, she had been taking medication for two
years.
Balderas flatly denied the State’s allegations that he sexually abused P.S. According to
Balderas, P.S. made the accusations against him because she was angry with him for providing
her with a bicycle, rather than a vehicle, for transportation while she was away at college.
II. Discussion
A. Sufficiency of the Evidence
In his first point of error, Balderas maintains that the State failed to present legally
sufficient evidence to prove beyond a reasonable doubt that he was guilty of continuous sexual
abuse of a young child. We agree.
1. Standard of Review
“In evaluating legal sufficiency, we review all the evidence in the light most favorable to
the trial court’s judgment to determine whether any rational jury could have found the essential
elements of the offense beyond a reasonable doubt.” Williamson v. State, 589 S.W.3d 292, 297
6
(Tex. App.—Texarkana 2019, pet. ref’d) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v.
State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d)). “Our rigorous [legal
sufficiency] review focuses on the quality of the evidence presented.” Id. (citing Brooks, 323
S.W.3d at 917–18 (Cochran, J., concurring)). “We examine legal sufficiency under the direction
of the Brooks opinion, while giving deference to the responsibility of the jury ‘to fairly resolve
conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts.’” Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)
(citing Jackson, 443 U.S. at 318–19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007))).
“Legal sufficiency of the evidence is measured by the elements of the offense as defined
by a hypothetically correct jury charge.” Id. at 298 (quoting Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997)). “The ‘hypothetically correct’ jury charge is ‘one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.’” Id. (quoting Malik, 953 S.W.2d at 240).
“In our review, we consider ‘events occurring before, during and after the commission of
the offense and may rely on actions of the defendant which show an understanding and common
design to do the prohibited act.’” Id. at 297 (quoting Hooper, 214 S.W.3d at 13). “It is not
required that each fact ‘point directly and independently to the guilt of the appellant, as long as
7
the cumulative force of all the incriminating circumstances is sufficient to support the
conviction.’” Id. (quoting Hooper, 214 S.W.3d at 13).
“Circumstantial evidence and direct evidence are equally probative in establishing the
guilt of a defendant, and guilt can be established by circumstantial evidence alone.” Id. (citing
Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004))). “Further, ‘we must consider all
of the evidence admitted at trial, even if that evidence was improperly admitted.’” Id. at 297–98
(quoting Fowler v. State, 517 S.W.3d 167, 176 (Tex. App.—Texarkana 2017), rev’d in part by
544 S.W.3d 844 (Tex. Crim. App. 2018) (citing Moff v. State, 131 S.W.3d 485, 489–90 (Tex.
Crim. App. 2004))).
2. Analysis
In order to obtain a conviction for continuous sexual abuse under Section 21.02 of the
Texas Penal Code,7 the State was required to establish beyond a reasonable doubt that, between
July 30, 2011, and continuing until on or about June 27, 2013, Balderas, (1) who was seventeen
years of age or older at the time of the alleged offense, (2) committed two or more acts of sexual
7
Section 21.02(b) states, in part, that a person commits the offense of continuous sexual abuse of a child when
(1) during a period that is 30 or more days in duration, the person commits two or
more acts of sexual abuse, regardless of whether the acts are committed against one or more
victims; and
(2) at the time of the commission of each of the acts of sexual abuse, the actor is 17
years of age or older and the victim is:
(A) a child younger than 14 years of age, regardless of whether the actor
knows the age of the victim at the time of the offense; or
(B) a disabled individual.
TEX. PENAL CODE ANN. § 21.02(b) (Supp.).
8
abuse against P.S., a child younger than fourteen years of age, (3) “during a period that [was] 30
or more days in duration.” See TEX. PENAL CODE ANN. § 21.02 (Supp.). The predicate offenses
alleged that, on four separate occasions, Balderas sexually assaulted P.S. by intentionally or
knowingly causing the penetration of P.S.’s sexual organ with his finger when she was younger
than fourteen years old. Balderas contends that the State failed to prove (1) that he committed
two predicate offenses against P.S. when she was younger than fourteen and (2) that those two
predicate offenses occurred at least thirty days apart.
At trial, P.S. testified, and the evidence showed, that Balderas committed the first
predicate offense in the green house sometime in 2011 or 2012, making P.S. twelve or thirteen
years old at the time of that assault.
When asked whether Balderas sexually assaulted her at any other time when the family
lived in the green house, P.S. stated,
Yes. . . . [I]t’s like a basement/room and that was my -- that became my room. I
lived in the living room for a while, like that was my room when we got back
from Houston. . . . Whenever I went to go do laundry or I was going down there
he would stop me at the top of the stairs.
P.S. said that Balderas “would feel on [her] and touch [her] “[Balderas] would . . . stretch [her]
pants and put his hand” inside and outside of her vagina. Consequently, P.S.’s testimony
supported a finding that Balderas committed the second predicate offense in the green house.
However, the State was also required to prove that P.S. was younger than fourteen at the time the
second predicate offense occurred.
9
To support a conviction for continuous sexual abuse of a young child, the State was not
required to prove the exact dates of the sexual abuse, but it was required to show that two or
more acts of sexual abuse occurred when the victim was less than fourteen years old and “during
a period that is 30 or more days.” TEX. PENAL CODE ANN. § 21.02(b)(1), (2); Garner v. State,
523 S.W.3d 266, 271 (Tex. App.—Dallas 2017, no pet.) (citing Baez v. State, 486 S.W.3d 592,
595 (Tex. App.—San Antonio 2016, pet. ref’d)). In addition, although the jury is not required to
agree on which specific acts were committed by the defendant or the dates on which they
occurred, it must unanimously agree that the defendant committed “two or more acts of sexual
abuse during a period of thirty days or more.” Id.Citing Dixon, the State points out that courts have been cautioned not to
impose unrealistic expectations regarding proof of when an offense actually
occurred: “[I]t is not often that a [young] child knows, even within a few days,
the date that she was sexually assaulted. And, the younger the child, the greater
the possibility” that she will be uncertain about the timing of the offense.
Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006) (first alteration in original) (quoting
Sledge v. State, 953 S.W.2d 253, 256 n.8 (Tex. Crim. App. 1997)).
Clearly, a young child should not be required to recall, or to testify to, the exact dates of
her sexual abuse. But, as the Texas Court of Criminal Appeals also explained in Dixon, we
should consider the extent of a child victim’s memory in relationship to a child victim’s age. In
Dixon, the child was six years old at the time the sexual abuse was alleged to have occurred, and
she was seven years old at the time she testified at trial. Id. at 731. Here, P.S. was around
twelve or thirteen years old when the abuse began. She was twenty-two years old at the time she
10
testified at trial. Consequently, although P.S. was not required to testify to the exact dates of
abuse, she was required to provide a more detailed version of events than that of a seven-year-
old child.
In their briefing and during oral argument, both parties used, as a temporal reference, the
period during which the family lived in the green house and the period during which the family
lived in the red house. At trial, P.S. testified as to when the family moved into the red house:
Q. So, at some point ya’ll moved over to the [red] brick house, right?
A. Yes.
Q. Okay. Do you remember what grade that was in?
A. It was going from the eighth grade to freshman year.
Q. All right. So do you remember how old you were at that point?
A. I was about to turn 15.
Q. About to turn 15?
A. Uh-huh.
In support of its contention that it proved beyond a reasonable doubt that Balderas
committed the second predicate offense before P.S. turned fourteen, the State directs us first to
P.S.’s testimony that the family moved to the red house when she “was almost 15 years old” and
that “the abuse occurred more frequently.” According to the State, that testimony, combined
with P.S.’s testimony that the assaults occurred in the green house at “other times” necessarily
showed that P.S. was younger than fourteen when the second predicate offense occurred. The
State, however, discounts the fact that P.S. had been fourteen for almost a year prior to leaving
11
the green house. The question is whether the jury could have properly inferred (1) that, because
P.S. lived in the green house during a time when she was less than fourteen years old, Balderas
committed the second predicate offense when she was younger than fourteen and (2) that those
two predicate offenses occurred at least thirty days apart.
In Hooper, the Texas Court of Criminal Appeals explained that juries are permitted “to
draw multiple reasonable inferences as long as each inference is supported by the evidence
presented at trial. However, juries are not permitted to come to conclusions based on mere
speculation or factually unsupported inferences or presumptions.” Hooper v. State, 214 S.W.3d
9, 15 (Tex. Crim. App. 2007). The court went on to clarify the difference between an inference
and a conclusion based on speculation:
[A]n inference is a conclusion reached by considering other facts and deducing a
logical consequence from them. Speculation is mere theorizing or guessing about
the possible meaning of facts and evidence presented. A conclusion reached by
speculation may not be completely unreasonable, but it is not sufficiently based
on facts or evidence to support a finding beyond a reasonable doubt.
As stated above, juries are permitted to draw multiple reasonable inferences from
the evidence (direct and circumstantial), but they are not permitted to draw
conclusions based on speculation. Without concrete examples, it can be difficult
to differentiate between inferences and speculation, and between drawing multiple
reasonable inferences versus drawing a series of factually unsupported
speculations.[8]
8
To illustrate the difference between the two, the court posed the following hypothetical:
A woman is seen standing in an office holding a smoking gun. There is a body with a gunshot
wound on the floor near her. Based on these two facts, it is reasonable to infer that the woman
shot the gun (she is holding the gun, and it is still smoking). Is it also reasonable to infer that she
shot the person on the floor? To make that determination, other factors must be taken into
consideration. If she is the only person in the room with a smoking gun, then it is reasonable to
infer that she shot the person on the floor. But, if there are other people with smoking guns in the
room, absent other evidence of her guilt, it is not reasonable to infer that she was the shooter. No
12
Id. at 16.
Inference stacking is not an improper reasoning process; it just adds unnecessary
confusion to the legal sufficiency review without adding any substance. Rather
than using language of inference stacking, courts of appeals should adhere to the
Jackson standard and determine whether the necessary inferences are reasonable
based upon the combined and cumulative force of all the evidence when viewed
in the light most favorable to the verdict.
Id. at 17.
The State relies on P.S.’s testimony that Balderas abused her almost every Sunday, which
could have, in theory, meant that Balderas sexually abused her on a Sunday when she was
younger than fourteen years old. But immediately before that testimony, the State asked P.S.,
“So was there anything that happened while you were at the [red] brick house?” (Emphasis
added). P.S. answered, “Yes.” She then went on to explain, “So there were -- it became like a
constant thing, every Sunday from 9:00 to 5:00, because my mom worked from 9:00 to 5:00.”
“And there’s times -- every Sunday I started having to wear heels and a skirt.” P.S. testified that
she was fourteen, “about to turn 15,” at the time she moved into the red house. Consequently,
P.S.’s testimony that Balderas sexually abused her almost “every Sunday” after she had moved
rational juror should find beyond a reasonable doubt that she was the shooter, rather than any of
the other people with smoking guns. To do so would require impermissible speculation. But,
what if there is also evidence that the other guns in the room are toy guns and cannot shoot
bullets? Then, it would be reasonable to infer that no one with a toy gun was the shooter. It
would also be reasonable to infer that the woman holding the smoking gun was the shooter. This
would require multiple inferences based upon the same set of facts, but they are reasonable
inferences when looking at the evidence. We first have to infer that she shot the gun. This is a
reasonable inference because she is holding the gun, and it is still smoking. Next, we have to infer
that she shot the person on the floor. This inference is based in part on the original inference that
she shot the gun, but is also a reasonable inference drawn from the circumstances.
Hooper, 214 S.W.3d at 16.
13
to the red house is immaterial to our analysis because she was at least fourteen years old at that
time, almost fifteen.
P.S. testified that, in 2011 or 2012, while she was on the telephone, Balderas touched her
vagina with his finger “[w]here [her] clitoris [was].” P.S. described (1) the time frame in which
the abuse occurred (when she was younger than fourteen), and (2) the manner in which it
happened. Accordingly, we agree with the State that the evidence at trial established that one of
the predicate offenses occurred. However, to prove a second predicate offense, the State directs
us to P.S.’s testimony that, while she lived in the green house, Balderas sexually abused her “at
other times.” The term “at other times” is exceedingly general in nature and, consequently, did
not provide a basis for the jury to rationally infer that P.S. was younger than fourteen when
Balderas committed the second predicate offense.9 This is so because P.S. testified that she
moved to the red house when she was almost fifteen years old. That necessarily means that, for
almost a year, P.S. was fourteen years old during the time she lived in the green house. Without
more, P.S.’s testimony that Balderas sexually assaulted her “at other times” did not provide a
basis to rationally infer that she was younger than fourteen at the time of the second predicate
offense.
Moreover, P.S.’s testimony that Balderas “sexually abused” her while the family lived in
the green house does not provide a basis to rationally infer that Balderas committed the second
9
The same is true of the State’s burden of proving that thirty days had elapsed between the time the first predicate
offense occurred and the second predicate offense occurred. Thirty days may have indeed elapsed between two
instances of sexual abuse, but only by speculating as to the meaning of “at other times” could the jury have
determined, or even inferred, that Balderas committed the second predicate offense at least thirty days after the first
predicate offense
14
predicate offense, that is, penetrating P.S.’s genitalia by using his finger. Nor does it provide a
basis to infer that P.S. was younger than fourteen at the time of a second predicate offense.
Balderas was charged with sexually abusing P.S. in a variety of other ways, including indecency
with a child by exposure and sexual assault of a child by intentionally or knowingly causing
P.S.’s sexual organ to contact Balderas’s mouth. Yet, those assaults did not make up the
underlying basis of the alleged predicate offenses with which the State specifically charged
Balderas, that is, aggravated sexual assault of a child by using his finger to penetrate P.S.’s
sexual organ. At best, P.S.’s testimony that Balderas “sexually abused” her created only a
suspicion of a fact regarding proof of the second predicate offense and, therefore, was
insufficient to support a conviction of continuous sexual abuse of a child.10
We sustain Balderas’s first point of error.11
Generally, when we find “the evidence insufficient to establish an element of the charged
offense, but the jury necessarily found the defendant guilty of a lesser offense for which the
evidence is sufficient,” we should “reform the judgment to reflect the lesser-included offense and
remand for a new punishment hearing.” Lee v. State, 537 S.W.3d 924, 927 (Tex. Crim. App.
10
In its appellate brief and during oral argument, the State maintained that P.S.’s age, as well as proof that the two
predicate offenses occurred at least thirty days apart, were “immaterial” elements of the charged offense. We
disagree. Proof of those two elements is what differentiates the offense of continuous sexual abuse of a child and
the offense of aggravated sexual assault of a child. However, because we find that the State did not meet its burden
of sufficiently showing that P.S. was less than fourteen years old when Balderas committed a second alleged
predicate offense, we do not find it necessary to discuss, at length, whether the State proved beyond a reasonable
doubt that Balderas committed two separate predicate offenses against P.S. and that those two predicate offenses
occurred thirty days apart from one another. That said, we conclude that the State did not meet its burden.
11
Because we find that the State did not present sufficient evidence to support a guilty verdict as to continuous
sexual abuse of a child, we need not address Balderas’s second point of error—that the trial court’s jury instructions
as to the offense of continuous sexual abuse contained egregious error.
15
2017) (citing Thornton v. State, 425 S.W.3d 289, 299–300 (Tex. Crim. App. 2014)). In this case,
there was sufficient evidence to find Balderas guilty of aggravated sexual assault of a child.12
Yet, our holding on issue three prevents us from modifying the judgment to reflect a conviction
of the lesser-included offense.
B. Whether the Trial Court Unfairly Bolstered the State’s Case
Article 36.28 of the Texas Code of Criminal Procedure states, in part, “[I]f the jury
disagree[s] as to the statement of any witness[,] they may, upon applying to the court, have read
to them from the court reporter’s notes that part of such witness testimony or the particular point
in dispute, and no other.” TEX. CODE CRIM. PROC. ANN. art. 36.28. In his third point of error,
Balderas contends, among other things, that the trial court erred by reading back testimony to the
jury during its deliberations, which, according to Balderas, resulted in “unfairly and
unnecessarily bolstering the State’s case.”
1. The Jury’s Notes
In its first jury note, the jury stated, “We would like to see English translations of the call
between [Balderas] and his daughter and the English translation of the interview between Officer
Bean and [Balderas].” The trial court responded, “The Court can only provide you with
documents admitted as evidence. Neither translation was admitted as evidence.”
12
Section 22.021(a) of the Texas Penal Code provides that a person commits aggravated sexual assault of a child if
the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child
younger than fourteen years of age. TEX. PENAL CODE ANN. § 22.021(a)(1)(A)(i), (a)(2)(B). Here, the evidence
was sufficient to show that, on or about June 27, 2012, Balderas intentionally or knowingly used his finger to
penetrate P.S.’s sexual organ and that P.S. was younger than fourteen years old at the time he committed that
offense.
16
In its second note, the jury asked, “Can we review the court reporters record of the
testimony by the officer [(Ramirez)] who translated the call between [P.S.] and Mr. Balderas?”
The trial court responded, in part, “In accordance with the Court’s instructions, it is necessary
that the Jury identify the disputed testimony. A general request for a witness’s testimony is
insufficient. Please specify your dispute so the Court can locate the relevant testimony.”
In its third note, the jury stated, “In the phone call between Mr. Balderas and [P.S.], there
was testimony that at one point in the call Mr. Balderas answered Yes, Yes to a question [P.S.]
asked him. We would like to hear [the] translation of what [P.S.] asked him that he answered
yes, yes, to.” Outside the presence of the jury, the trial court addressed the parties, stating,
“Now, granted in this third note they do not identify the witness. But they have specified what
the dispute is over. The dispute is over what [P.S.] asked him. So the Court is inclined to reply
that they have to identify which witness’ testimony they want to hear from.” The State had no
objection to the proposed response, but Balderas objected, arguing,
We don’t feel that it’s reached the point that any further comment other than you
have all the law contained in the charge as a comment, and it’s more confusing.
We would ask simply that the Court respond you have all the law contained in the
charge, please refer to that. That would be -- we would object to anything further.
Anything further delineating out specific things we believe is a comment
potentially on the evidence and we would just ask the Court to refer them to the
charge that contains the law.
Yet, before the trial court sent a response back to the jury, it received a fourth note, which
stated, “Were officer Bean’s notes surrounding his interrogation of Mr. Balderas admitted to
evidence, and if so can we review those notes of the interogation [sic]?” In addressing the third
and fourth notes, Balderas stated,
17
I would just add, Judge, based on the context of the fourth note it appears to the
Defense that they’re just asking for testimony without generating any -- or
notifying the Court of any dispute. It’s pretty clear in this fourth note they just
want additional testimony or evidence that’s not in evidence. We would submit to
the Court that is what note 3 is as well. They haven’t generated and said we are in
dispute as to given the exact dispute as to what person and what conversation it
was. Without that we don’t think it can be answered any way but than to say you
have all the law contained in the charge, without the Court commenting on or
directing them to a particular area. They have the law. The Court has been
specific with them. They were told that by the State. We feel anything further is
outside.
The trial court then informed the parties, “The Court’s response to note 3 will be: You are
required to identify the witness or witnesses from whom you wish to hear.” The State had no
objection to the trial court’s response to the third note, and Balderas renewed his previous
objection. Next, the court stated, “Then note 4, which was Officer Bean’s notes, the request for
those if they were admitted, the Court is replying: The requested item was not admitted into
evidence.” Neither party had an objection to the trial court’s response to the fourth note.
The court then received a fifth note from the jury, which stated, “We wish to hear from
officer Ramirez about what [P.S.] asked Mr. Balderas that answered yes-yes, (Si Si) to[.]” The
trial court and the parties then reviewed the transcript of the requested testimony. The court
explained, “Officer Ramirez answered she says are you aware what you did to me, he’s like yes-
yes. That is relevant testimony. I will bring the jury back in and we’ll read that testimony to
them.” Balderas objected, “I cross[-]examined after that and the full answer in my notes that
Officer Ramirez said when I asked him [what] it was she said -- he said yes-yes and I said
something but that’s not the end of it.” Balderas continued,
18
The yes-yes is not a complete translation of what was said. It leaves an unfair
answer because it’s not what his full answer was. Again, it’s our position that the
note that you plan to answer they did not put in that note anywhere that there’s a
dispute about that. They’re just asking for some testimony so we shouldn’t even
be doing this is the Defense’s contention.
Balderas went on to explain his reasoning, stating that, after he said, “[Y]es-yes,” to P.S.’s
question, he immediately followed with, “that’s what you say.” The State responded that the
jury had asked about the contents of P.S.’s question that prompted the response of “yes-yes[,]”
but not what Balderas’s response to the question had been. The court stated that it was “inclined
to read and strictly construe their notes. Their note clearly asks what did [P.S.] ask Mr. Balderas
that he answered yes-yes to. Your objection is noted.”
Before the jury returned to the courtroom, the court received and discussed a sixth jury
note with the parties. The question read, “Can we hear [P.S.]’s question or statement to
Mr. Balderas immediately before she asked[,] ‘Are you aware what you did to me’ and he
answered Yes-Yes.” After the court noted that the jury did not identify the witness, it said, “But,
let’s just assume they’re talking about Officer [Ramirez].” The court then reiterated that
Balderas asked P.S. if she was aware of the steps that she was taking against him, and P.S. said,
“[Y]es,” she was aware. Then P.S. asked Balderas if he was aware of what he had done to her
and Balderas responded, “[Y]es, yes.” The court asked Balderas whether he believed the jury
had complied with the court’s instructions in terms of identifying a witness and the dispute
regarding that witness’s testimony. Balderas repeated his prior objection, arguing (1) that the
jury had not identified a witness, (2) that it had not pointed to a dispute but was merely asking
for the trial court to read back testimony, and (3) that the trial court’s proposed response, without
19
more, was incomplete and misleading. The court agreed with Balderas, stating that it would
instruct the jury to refer to the court’s response to the second note, that is, that the jury was
required to advise the court of a dispute.
Neither party objected to the trial court’s proposed response to the sixth note.
The jury then sent a seventh note, which read, “We would like to hear Officer Ramirez’
testimony and translation of [P.S.]’s question or statement to Mr. Balderas immediately before
she asks are you aware of what you did to me.” In response, the State argued, “I understand the
note as them being uncertain as to whether -- what immediately proceeded [sic] that was a
question or statement and they’re just trying to cover whatever the last thing she said before the
question was.” The trial court replied, “Are you serious? Let’s wait and see what they have to
say in note 8.”
The trial court stated,
They write: Can we hear Ramirez’ translation of the call between [P.S.] and
Mr. Balderas from the point Balderas initially answers the phone to the point he
answer[s] si-si, to [P.S.]’s question are you aware of what you did to me. So
essentially they’re asking for everything from the time he picks the phone up until
he answers are you aware what you did to me si-si. I don’t think it’s a lot of
testimony.”
After a brief break, the trial court returned to the bench and explained,
I think the Court does find there is a dispute. There is a factual dispute within the
jury as to the contents of that telephone call. So they don’t have to use a specific
word saying that there is a dispute, just -- I can infer from the progression of
notes. And I’ve got plenty of them now. I think it’s quite clear that there is a
factual dispute as to what’s in the phone call.
The main reason behind 36.28 is to make sure the Court doesn’t comment
on the weight of the evidence, in other words cherry pick things. I think their
20
request is quite clear. They have limited it in scope, from the time the phone is
picked up until the time that question is asked.
The court asked if either party had an objection, to which the State explained that it might help to
ask the jury “how many lines of testimony or pages because obviously if it’s 5 to 6 lines of
testimony that’s far different than 50 or 60, just to help identify it is that, actually, narrow in
scope.” Once again, Balderas objected, stating that the jury had not identified a specific dispute
and that reading only Balderas’s answer (“si-si”) to P.S.’s question, without reading his
testimony immediately following “si-si,” was misleading, incomplete, and taken out of context.
At that point, the trial court sent a note to the jury in response to the seventh note, stating
that the jury should continue deliberating and that the court would provide a response shortly to
the seventh and eighth notes. After a brief recess, the trial court determined that the requested
testimony was “very short” and indicated that it intended to read it back to the jury. The court
noted Balderas’s objections.
In response to the seventh and eighth notes, the trial court read to the jury Ramirez’s
translation of the recording of the telephone call between P.S. and Balderas:13
Question [by the State]: Can you give us kind of a breakdown of what that was.
Answer [by Ramirez]: Yes. This is going to be the phone call between the
Defendant and the victim. Basically they just answered the phone, said hello.
[Balderas] asked how are you. Said we are fine. Question [by the State]: Okay.
Question [by the State]: Okay. What did [P.S.] or [P.S.] say at that point[?]
Answer [by Ramirez]: Basically she just said that she told her mom what the
Defendant had done for -- to her for eight years, everything about him coming in
at three o’clock in the morning in her room and touching her, putting his fingers
in her. Question [by the State]: And at that point[,] when you listened to [the
recording of their conversation] the first time did you hear something that you
13
The State played portions of the recording and then asked Ramirez to translate what had been said.
21
realized after you listened to it was a mistake[?] Answer [by Ramirez]: Yes. I
initially thought he had said yes right after that statement but it was a little bit
later on in the conversation. Question [by the State]: Okay. So what did - - did
he say something right after [P.S.]’s statement there[?] [Answer by Ramirez:]
He’s just said are you okay[?] Question [by the State]: Okay. Question [by the
State]: Okay. What about -- what was that little exchange[?] Answer [by
Ramirez]: He’s just asking her twice if she’s okay and she’s saying no. And then
he wants to know where her mother is. He wants to know if he can know where
she is at. Okay. Question [by the State]: What did -- he -- answer: He asked are
you aware of the steps that you’re taking and she said yes. Question [by the
State]: What did she say right there[?] [Answer by Ramirez:] She said yes, I am
aware. She was like are you aware. Answer [by Ramirez]: She says are you
aware what you did to me and he’s like yes, yes.
2. Balderas Did Not Waive His Point of Error for Our Review
The State argues first that Balderas failed to preserve this issue for appellate review
because his point of error on appeal does not comport with his objection at trial. Complaints
regarding error in the reading of trial testimony during deliberations “must be preserved by
objection at the time of the reading.” Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App.
1991); May v. State, 139 S.W.3d 93, 100 (Tex. App.—Texarkana 2004, pet. ref’d). A timely
objection gives the trial court an opportunity to correct the alleged error. Morales v. State, 222
S.W.3d 134, 145 (Tex. App.—Corpus Christi 2006, no pet.) (citing Martinez v. State, 22 S.W.3d
504, 507 (Tex. Crim. App. 2000) (holding that the reason for a timely objection is to “give to the
trial court or the opposing party the opportunity to correct the error or remove the basis for the
objection”). The complaint on appeal must comport with the trial objection. Yazdchi v. State,
428 S.W.3d 831, 844 (Tex. Crim. App. 2014).
At trial, Balderas objected multiple times to the court’s response to the jury’s note
because (1) there was no evidence of a dispute among the jurors, and (2) the testimony that the
22
court read back to the jury lacked context. On appeal, Balderas maintains, among other things,
that the trial court erred by reading back the selected testimony to the jury because it “unfairly
and unnecessarily bolster[ed] the State’s case.” According to the State, Balderas did not make
that argument at trial. We disagree. Balderas argues on appeal that the trial court excluded
portions of Ramirez’s testimony that clearly bore on the disputed issue identified by the jury.
We interpret that to mean that the trial court bolstered the State’s case when it refused Balderas’s
request to re-read the remainder of Ramirez’s testimony, that is, “He’s like I agree that’s your
truth.”14 Consequently, we find that Balderas’s argument on appeal comports with the objections
he made at trial.
3. The Trial Court Did Not Err When It Found that the Jury Identified
a Factual Dispute
The Texas Court of Criminal Appeals has held that the purpose of Article 36.28 is “to
balance our concern that the trial court not comment on the evidence with the need to provide the
jury with the means to resolve any factual disputes it may have.” Howell v. State, 175 S.W.3d
786, 790 (Tex. Crim. App. 2005) (citing Robison v. State, 888 S.W.2d 473, 480 (Tex. Crim. App.
1994)). If the jury asks the trial court to read back particular disputed testimony, the “court must
first determine if the jury’s inquiry is proper under Article 36.28.” Brown v. State, 870 S.W.2d
53, 55 (Tex. Crim. App. 1994). “A simple request for testimony is not, by itself, a proper request
under Article 36.28.” Balderas v. State, 517 S.W.3d 756, 797–98 (Tex. Crim. App. 2016) (citing
DeGraff v. State, 962 S.W.2d 596, 598 (Tex. Crim. App. 1998)).
“Error preservation . . . is not an inflexible concept,” and its application should not be mechanically applied.
14
Thomas v. State, 408 S.W.3d 877, 884 (Tex. Crim. App. 2013).
23
Balderas maintains that the jurors did not identify a particular disagreement regarding a
witness’s testimony. Article 36.29 necessitates only that the jurors disagree about a witness’s
testimony. But it does not require the jury to state the nature of their disagreement in a specific
manner. Howell, 175 S.W.3d at 793 (“The statute requires that the jury disagree; it does not
require that the jury use any particular words to express that disagreement.”). While a simple
request for testimony does not amount to a disagreement, either implicit or express, a trial court
may, in its discretion, infer a dispute in a given case. Id. (citing Moore v. State, 874 S.W.2d 671,
674 (Tex. Crim. App. 1994)). “The judge’s inference of dispute need only have some basis other
than mere speculation.” Id. at 792.
In Moore, the jury asked the trial court to read back a specific portion of testimony.
Moore v. State, 874 S.W.2d 671, 672 (Tex. Crim. App. 1994). Moore objected, asking “the trial
court [to] inform the jurors they must certify there was a dispute among them as to a particular
point in the testimony.” Id. The trial court denied the request and informed the jury that the
court reporter would not be available until later. Id. The jury continued to wait for two hours
more before sending out another note, reading, “We cannot progress any further until [the
witness’s] testimony is read for us. Is the court reporter here so she can read that portion of the
testimony?” Id. The trial court then had the reporter read the requested testimony over Moore’s
objection that the jury had not certified the existence of a dispute. Id. Finding that the jury’s
request did not indicate a disagreement as required by Article 36.28, the Texas Court of Criminal
Appeals noted that the jury’s successive notes did not demonstrate a pattern of narrowing the
jury’s request from a global request for testimony to a specific question targeted to one witness’s
24
responses during cross-examination. Id. at 673. Second, the trial court did not instruct the jury
under Article 36.28 of the Texas Code of Criminal Procedure. Id. at 674.
Robison presents facts that more closely correspond to the facts of the case at bar. In his
ninth and tenth points of error, Robison argued that the trial court, “in response to a request by
the jury, provided a transcription of certain testimony in violation of Article 36.28.” Robison v.
State, 888 S.W.2d 473, 479–80 (Tex. Crim. App. 1994). During jury deliberations, the trial court
received a series of three successive notes requesting evidence and testimony from trial. Id. at
480. The first request asked for (1) “documentation that would give time of death for each
victim” and (2) “[e]vidence or transcript containing the findings of the Chief of Psychiatry at the
TCOM [Texas College of Osteopathic Medicine].” Id. (second alteration in original). The
request did not state that the jurors had a dispute over the testimony. Id. The trial court
instructed the jury that “the law provides that if the Jury disagrees as to the testimony of any
witness, they may, upon application to the [trial] Court, have read to them from the Court
Reporter’s notes that part of a witness’ testimony on the particular point in dispute and no other.”
Id. The court continued, “Therefore, you are instructed if you desire to have any testimony, to
notify the Court in writing of the particular part or parts of any witness’ testimony which is in
dispute and which you desire.” Id. Just twenty minutes later, the jury sent a note, stating, “We
respectfully request all written documents that were submitted into evidence be brought to us.”
Id. The trial court responded, “You have all the written documents that were submitted into
evidence other than the three documents attached to this answer.” The court continued, “If you
are referring to oral testimony concerning a particular witness’ testimony, you are instructed that
25
you must be specific about the oral testimony you want reproduced for you and which is in
dispute.” Id. In its third note to the court, the jury asked for a “transcript of Hatcher’s [the
prosecutor’s] cross-examination of Dr. Price, in which Hatcher read excerpts from, the reporter
of the Chief of Psychiatry at TCOM.” Id. (alteration in original). At that point, the trial court
sent the requested transcript to the jury.
Finding that the trial court had not abused its discretion by reading back the challenged
testimony to the jury, the Texas Court of Criminal Appeals explained:
Here, there were three separate requests made by the jury in determining whether
a dispute existed, each becoming increasingly narrow in scope. Additionally, the
trial court clearly informed the jury that testimony would be read back only in the
event of a dispute after each request for information. By considering the last note
requesting the testimony in conjunction with prior notes from the jury and the
corresponding instructions from the trial court, it was not unreasonable to infer a
disagreement among the jury regarding Dr. Price’s testimony. The trial court was
properly cautious in observing the competing concerns of article 36.28 of the
Texas Code of Criminal Procedure.
Id. at 481.
In this case, the jury first sent a general request that it wanted to see the English
translation of the call between Balderas and P.S. The trial court denied the request because that
document was not admitted into evidence. In the second note, the jury asked for the court
reporter’s record of Ramirez’s translation of the call. The trial court responded by instructing the
jurors that they had to identify a dispute. In the third note, the jury began to get more specific
with what part of the testimony they wished to hear. The jury note stated, “We would like to
hear [the] translation of what [P.S.] asked [Balderas] that he answered Yes, Yes, to.” After the
trial court recognized that the third note had not identified a particular witness, it told the parties
26
that it believed the jury had identified a specific dispute, that is, a dispute over what P.S. asked
Balderas. The trial court responded by sending a note back to the jury telling it to identify which
witness’s testimony it wished to hear. The fifth note was fairly specific as to what the jury
wanted to hear—Ramirez’s testimony about what P.S. asked Balderas before he answered, “Yes,
Yes.” As to the sixth note, the trial court pointed out that the jury had not designated Ramirez as
the witness, so it sent a note back to the jury repeating its instruction that the jury identify a
witness and a disagreement. In regard to the seventh and eighth notes, the trial court found that
the jury wanted to hear Ramirez’s translation of the telephone call from the beginning of the call
up until Balderas said, “[S]i-si.” In response, Balderas argued that, if the trial court stopped
reading at “si-si,” the jury would be left with an incomplete picture of the testimony. Noting
Balderas’s objections, the trial court found that there was a factual dispute as to the contents of
the telephone call and that the jury had limited its request from the time the call began until
Balderas said “si-si.” The testimony was then read.
It is appropriate to consider the eight jury notes in conjunction with one another. See id.It is apparent from those notes that the trial court was making a significant effort to stay within
the parameters of Article 36.28. After hearing from each of the parties, the court sent multiple
notes instructing the jury that it could read back testimony only in the event the jury designated a
dispute regarding a particular witness. Each subsequent jury note became increasingly specific
in its requests. Pursuant to the court’s instructions, the jury identified Ramirez, and it informed
the court that it wanted to hear Ramirez’s translation of the telephone call between Balderas and
P.S. up to the point that Balderas said, “[S]i-si.” By considering each jury note, in conjunction
27
with the subsequent notes, along with the trial court’s instructions, it was not unreasonable for
the trial court to infer a disagreement among the jury regarding the contents of the telephone call.
“The trial court was properly cautious in observing the competing concerns of article 36.28 of
the Texas Code of Criminal Procedure.” See id. Accordingly, we cannot say that the trial court
abused its discretion when it determined that there existed a dispute among the jurors regarding
Ramirez’s testimony relating to what P.S. asked Balderas before he answered “si-si.” But that
does not end our analysis.
4. The Trial Court’s Selection of Testimony Was Error
If the trial court finds that “the jur[ors] disagree as to the statement of any witness they
may, upon applying to the court, have read to them from the court reporter’s notes that part of
such witness testimony or the particular point in dispute, and no other . . . .” TEX. CODE CRIM.
PROC. ANN. art. 36.28 (emphasis added). Here, Balderas maintains that, even assuming the jury
identified a disagreement, the trial court failed to read back Ramirez’s testimony in its proper
context.
As the Texas Court of Criminal Appeals has explained,
When the jury asks the trial court to read back certain disputed testimony, the trial
court judge must first determine if the jury’s inquiry is proper under Article 36.28.
If it is proper, the trial court must then interpret the communication and decide
what sections of the testimony will best answer the inquiry. The trial court has
the discretion to decide “what sections of the testimony will best answer the
query, and limit the testimony accordingly.” However, if a trial court reads too
much or too little testimony to the jury, such a response may serve to bolster the
State’s case unnecessarily.
28
Thomas v. State, 505 S.W.3d 916, 923 (Tex. Crim. App. 2016) (citations omitted). This rule
attempts to strike a balance between the trial court’s responsibility to aid the jurors in resolving
disputes about the evidence itself, on the one hand, and the concern that the trial court not
comment on the weight of the evidence, on the other. Balderas, 517 S.W.3d at 797. We also
apply an abuse-of-discretion standard regarding “the trial court’s selection of testimony
responsive to the jury’s request.” Id. (citing Brown, 870 S.W.2d at 56).
At trial, and on appeal, the State argued that the jury was very specific with its question,
that is, the jurors had a dispute regarding Ramirez’s translation of P.S.’s question to which
Balderas answered, “[S]i-si,”or “Yes, Yes.”15 Specifically, in its final note, the jury explained,
“We would like to hear Officer Ramirez’ testimony and translation of [P.S.]’s question or
statement to Mr. Balderas immediately before she asks are you aware of what you did to me.”
Determining that there was a dispute among the jury as to what P.S. asked Balderas that elicited
his answer of “Yes, Yes,” the trial court was tasked with deciding what sections of the testimony
would best answer the jury’s question. In response, the trial court read to the jury, in relevant
part, the following testimony:
He’s just asking her twice if she’s okay and she’s saying no. And then he wants
to know where her mother is. He wants to know if he can know where she is at.
Okay. Question [by the State]: What did -- he -- answer[?] [Answer by
Ramirez:] He asked are you aware of the steps that you’re taking and she said
yes. Question [by the State]: What did she say right there[?] [Answer by
Ramirez:] She said yes, I am aware. She was like are you aware. Answer [by
Ramirez]: She says are you aware what you did to me and he’s like yes, yes.
15
The jury notes contained both English (yes) and Spanish (si).
29
Article 36.28 states that, in the event there is a dispute among the jurors, the trial court
may “read to them from the court reporter’s notes that part of such witness testimony or the
particular point in dispute, and no other . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.28
(emphasis added). Had the trial court strictly construed Article 36.28 and the jury’s request, its
read-back to the jury would have ended with “[s]he said yes, I am aware” and before “[s]he was
like are you aware.” Instead, the trial court went further and included Balderas’s answer of
“Yes, Yes.”16 The trial court’s reading of the testimony emphasized what appears to be a clear
admission by Balderas to P.S.’s allegations of sexual abuse, it exceeded the scope of the jury’s
dispute, and it “serve[d] to bolster the State’s case unnecessarily.” See Thomas, 505 S.W.3d at16
Martinez testified:
A. [By Ramirez] He asked are you aware the steps that you’re taking and she said
yes.
....
Q. [By the State] What did she say there?
A. [By Ramirez] [He] said yes, I am aware. She was like are you aware.
....
A. [By Ramirez] She says are you aware of what you did to me. He’s like yes.
Yes.
Q. [By the State] Okay.
....
Q. [By the State] Okay. What about there?
A. [By Ramirez] “She’s just saying are you aware what you did to me. He’s like
yes uh -- and he starts stuttering a little bit and says I am aware of what you’re saying and
everything. He’s like I agree that’s your truth.
30
923. For these reasons, we find that the trial court erred by not limiting the response to that
portion of the testimony that was presumably in dispute.
5. Balderas Was Harmed by the Trial Court’s Response to the Jury’s
Note
We now turn to the issue of whether Balderas was harmed by the trial court’s response to
the jury’s note. In cases such as this, an appellate court applies the standard for assessing harm
detailed in Rule 44.2(b) of the Texas Rules of Appellate Procedure.17 See TEX. R. APP. P.
44.2(b). Under that standard, reversal is required only in the event the trial court’s Article 36.28
error affected an appellant’s substantial rights. “A substantial right is affected when the error
had a substantial and injurious effect or influence in determining the jury’s verdict.” King v.
State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328 U.S.
750, 776 (1946)). “[A]n error ha[s] a substantial and injurious effect or influence if it
substantially sway[s] the jury’s judgment.” Thomas, 505 S.W.3d at 926. “If so, or if one is left
in grave doubt, the conviction cannot stand.” Kotteakos v. United States, 328 U.S. 750, 765
(1946). However, when “the error did not influence the jury, or had but very slight effect, the
verdict and the judgment should stand.” Id. at 764.
In Thomas, the Texas Court of Criminal Appeals explained,
[T]he harm analysis in this case should not hinge solely on the lack of
contradiction between the testimony read back and the testimony not read back.
A variance in what is read and what is not read could mean the error is harmful
even if there was no contradiction. That is why a proper harm analysis requires a
review of the entire record, including the weight of the evidence of Appellant’s
17
Rule 42(b) states, “Any [non-constitutional] error, defect, irregularity, or variance that does not affect substantial
rights must be disregarded.” TEX. R. APP. P. 44.2(b).
31
guilt, in order to determine whether the trial court’s erroneous omission of
testimony that varied from that which was read back to the jury affected
Appellant’s substantial rights. In assessing the likelihood that the jury’s decision
was adversely affected by the error, the reviewing court should consider all of the
testimony and physical evidence admitted for the jury’s consideration, the nature
of the evidence supporting the verdict, the character of the alleged error and how
it might be considered in connection with other evidence in the case, and closing
arguments.[18] If, after a review of the record as a whole, the appellate court can
say that it “has [a] fair assurance that the error did not influence the jury, or had
but a slight effect,” then the error is harmless.[19]
Thomas, 505 S.W.3d at 927.
Here, the jury heard Ramirez’s translation of P.S. asking Balderas during their recorded
telephone conversation whether he was aware of what he had done to her. But the court went
even further by reading back that portion of Ramirez’s translation of Balderas’s answer, which
was “Yes, Yes.” The trial court stopped at that point, choosing to omit the following testimony:
Q. [by the State] Okay. What about there?
A. [by Ramirez] She’s just saying are you aware what you did to me.
He’s like yes uh -- and he starts stuttering a little bit and says I am aware of what
you’re saying and everything. He’s like I agree that’s your truth.
(Emphasis added). The court chose to not read back the uninterrupted remainder of Balderas’s
response to P.S.’s question, indicating that he was aware of her accusations. Having exceeded
the scope of the jury’s question, and by failing to read back the sentences immediately following,
18
Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000); Llamas v. State, 12 S.W.3d 469, 471 (Tex. Crim.
App. 2000) (“To judge the likelihood that harm occurred, appellate courts must consider everything in the record,
including all the evidence admitted at trial [and] the closing arguments . . . .”).
19
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002) (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001); Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)).
32
“Yes, Yes,” the court’s reading to the jury amounted to an admission to the charged offenses,
rather than a mere acknowledgment of her accusation.
That said, a review of the entire record shows that a major issue at trial was whether
Balderas admitted or denied the accusations against him during the telephone call with P.S.
First, when the State called Ramirez during its case-in-chief, Ramirez testified that Detective
Chris Bean asked him to listen to the recording of the telephone call between P.S. and Balderas.
Ramirez translated the call word for word, to the extent that was possible, and he was questioned
at length about Balderas’s response of “Yes, Yes.” During cross-examination, however, Ramirez
admitted that he made a mistake in translating the call. In fact, Balderas did not admit to the
things he was accused of doing. Ramirez also acknowledged that Balderas had been referring to
her truth. To shore up his testimony, Ramirez clarified, “[Balderas] never made the statement I
did those things.”
Next, the State called Bean to testify. Bean also acknowledged that Ramirez made a
mistake in his translation of the telephone call between Balderas and P.S. Bean said that
Balderas was adamant that he never admitted to P.S.’s accusations.
Balderas also testified in his own defense, vehemently denying that he committed sexual
assault against P.S. He also testified that he did not admit to sexually assaulting P.S. during their
telephone conversation and that, at the time of the call, he was unaware that their conversation
was being recorded. But, after learning that it had been recorded, Balderas testified, “I told them
bring the recording and let’s listen to it together because that is a lie, I did not say that.”
33
During its initial closing argument, the State made no reference to the telephone call and
did not concede that Ramirez had made an error in the translation of the call. But Balderas
highlighted those issues in his closing argument:
On the 16th [P.S.] had him on the phone -- and then they tell her to call him. He
doesn’t know he’s being recorded. So what happens? Officer Ramirez, God
bless his heart, he just ran through it quickly. He told you that. He told the
Detective Bean, wrongfully, that he had confessed to the crime. He said yes. He
said don’t you remember when you were touching me, you came in the middle of
the night at 3:00 AM. He thought he said yes but he didn’t. So Detective Bean,
ah-ha, okay, so he’s confessed to the crime. So they go and they talk to him, they
arrest him right after that. That night they arrest him.
So then they meet with him the very next day. And rightfully so, law
enforcement thinks he’s lying when he’s denying it. Well, you confessed to it
yesterday, we have it on recording. What does [Balderas] do? I absolutely did
not, you bring that recording in here. You bring that recording in here because I
did not confess to anything. What happens? Officer Ramirez is thinking did I
make a mistake. So [Ramirez] leaves there, after [Balderas has] already been
arrested, he leaves and he listens to the recording again. Lo and behold, he made
a mistake. [Balderas] did not confess to the crime. He writes a supplemental
report. It’s in black and white, and he said I made a mistake, I made a mistake to
his answer, he did not say yes.
In its response to Balderas’s closing argument, the State addressed what Balderas said
during the telephone call, arguing,
And then let’s think back to -- we heard that phone call right here in court
earlier today and we heard Officer Ramirez give the translation right here in court
today. At the beginning of the call [P.S.] describes I told them about all the years
you’ve been abusing me, about the times you came into my room at night and
were touching me. What is [Balderas]’s response on the phone? If it didn’t
happen what is the normal response? It is what are you talking about.
....
When she says are you aware of what you did to me that’s where he said
yes, yes. You heard on the tape. Si.
34
After both parties closed, the trial court released the jurors and ordered them to return for
deliberations the following morning.
The next morning, the trial court explained to the parties,
Today is Wednesday, January 26th. At the conclusion of the trial
yesterday the jury asked to go home before they began deliberating. The Court
instructed them to appear here at nine o’clock, go directly to the jury room and do
not begin deliberations until everyone is present. It is now 9:13.
As the jury assembled this morning and began their deliberations they
have now sent out their first note.
The record shows that the jury sent its first note to the court almost immediately after they began
their deliberations. The jury sent its last note around 11:15 a.m., and a few minutes later, the
trial court responded to the jury’s last note. Less than an hour after that, the jury reached a guilty
verdict. In sum, the jury spent approximately three hours in deliberations, the vast majority of
which was spent sending notes to the court, all of which involved the same issue. Moreover,
once the jury received the trial court’s response, it found Balderas guilty of Counts III, IV, and V
in a matter of minutes.
Importantly, there was no physical evidence in this case to support the State’s allegations
against Balderas, nor were there any eyewitnesses to the alleged offenses, other than P.S.
Consequently, P.S.’s credibility was a necessary part of the State’s proof, and Balderas’s
credibility was at the very heart of his defense. It is true that the jury heard Balderas assert his
innocence when he testified at trial, so it could be argued that the trial court’s failure to read back
what amounted to a denial of the allegations did not cause Balderas any harm. But when the jury
35
heard the trial court’s read-back of Balderas seemingly agreeing to P.S’s accusations during their
telephone call—at a time when Balderas was unaware that a third party was listening and when
he was more likely to be truthful—that incomplete re-reading of the testimony had the potential
to destroy Balderas’s credibility at trial when he denied the allegations against him. Further, the
trial court’s failure to read Balderas’s entire answer reaffirmed the State’s rebuttal argument,
which left an inaccurate impression with the jury and was the last comment on the testimony that
the jury heard before returning its verdict.
Having reviewed the entire record, we cannot say that we have a “fair assurance that the
error did not influence the jury, or had but a slight effect.” See Thomas, 505 S.W.3d at 927.
We sustain Balderas’s third point of error.
III. Conclusion
Because we find that there was insufficient evidence to support Balderas’s conviction for
continuous sexual abuse of a young child, we reverse the trial court’s judgment of conviction as
to Count I and render a judgment of acquittal as to that count. Further, we sustain Balderas’s
third point of error, and reverse the judgments of conviction as to Counts III, IV, and V. Finally,
we remand Counts II, III, IV, and V to the trial court for a new trial consistent with this
opinion.20
Charles van Cleef
Justice
20
Because we sustained Balderas’s first and third points of error, we find it unnecessary to address his second and
fourth points of error.
36
MEMORANDUM OPINION
CONCURRING IN PART AND DISSENTING IN PART
For reasons expressed by the majority in Section II, subsection B, I agree that the trial
court’s incomplete read back of Balderas’s answer (as testified to by Officer Ramirez) requires
reversal under the Thomas standard for harmful error. Thomas, 505 S.W.3d at 927.
I share in the assessment that the phone call was a key issue from beginning to end.
Officer Ramirez initially translated Balderas’s answer as though it ended with “Yes, yes.”
Relying on that translation, the lead investigator in this case, Officer Bean, questioned Balderas
on the mistaken belief that Balderas had confessed in the phone call. In that questioning, though,
Balderas was adamant that he had not confessed and that he had said more. Balderas asked that
the recording of the phone call be played back. After re-listening to the phone call, Officer
Ramirez revised his translation. At trial, Officer Bean was cross-examined about this sequence
of events. Officer Bean conceded that he would have preferred to have had an accurate and
complete translation before interviewing Balderas.21 The testimony of Officer Bean was just one
21
The testimony was as follows:
Q. There was a mistake made in the translation before [Officer Bean] interviewed
Mr. Balderas?
A. What are --
Q. From Officer Ramirez?
A. I believe -- my memory was that he had made -- initially made a mistake in the
phone call translation I believe.
Q. Yeah, that’s what I’m referring to.
A. Yes.
37
of several occasions where, at trial, the jury heard testimony about the translation’s
completeness, or lack thereof. In the State’s concluding address to the jury, however, the State—
much like Officer Ramirez’s initial translation—focused on some, but not all, of what Balderas
said in the phone call—“When she says are you aware of what you did to me that’s where he
said yes, yes. You heard on the tape. Si.” After the State’s concluding address, the jury selected
a foreperson and, given that it was nearing 5:00 p.m. on January 25, the jury opted to go home
and to begin their deliberations on the morning of January 26. It was on the morning of January
26 that the flurry of jury notes began.
This matters in the harm analysis, because of the primacy and recency effects: “What we
hear first and last is what we are most likely to remember.” Sherri A. Evans et al., How We
....
Q. And he [Balderas] was pretty adamant that was not true. Mr. Balderas even said --
offered for you to bring the tape in. He was told there was a tape of it and he offered you to bring
it in here, listen to it, that’s not true. I never said that, words to that effect. I’m paraphrasing.
A. Yes.
Q. Okay. You never did that? You never played the tape for him?
A. No, I did.
Q. Did you suggest to Officer Ramirez to go relisten to that tape?
A. I don’t recall how the timeline on that was. I know that when he initially listened to it
and then he listened to it a second time that’s when he caught what could’ve been a mistake in his
translation I believe. But I don’t know if I suggested to him or he just did that on his own.
Q. That’s kind of a big thing, right? Questioning a suspect based on wrong information?
You would have preferred to have the correct version when you talked to Mr. Balderas?
A. Yeah, sure. You would prefer to have exact information. Yeah.
38
Make Decisions: Neuroscience and Heuristics, STATE BAR OF TEXAS 43RD ANNUAL ADVANCED
FAMILY LAW CONFERENCE, 2017 TXCLE-AFL 34.1 IV, 2017 WL 8316545 (2017). That said, it
could be that the jury, having heard all the testimony in the case (including testimony about
Officer Ramirez’s initial, and then revised, translation) could have decided to believe some
(“yes, yes”) but not all (“that’s your truth”) of what Balderas said. Were we looking at this
question through a sufficiency lens, the conclusions to draw from the evidence would be the
jury’s call to make.22 Indeed, accepting some, but not all, of Balderas’s answer is the call that
the State’s concluding remarks implicitly invited the jury to make. But in Section II, subsection
B, of the majority opinion, we are not looking at what conclusions the jury may draw from the
evidence, we are looking at the presentation of the evidence to the jury via the read-back of the
testimony. That read-back is evaluated through the lenses of the “and no other” mandate of
Article 36.28 of the Texas Code of Criminal Procedure, TEX. CODE CRIM. PROC. ANN. art. 36.28,
and the Thomas harm standard: “fair assurance that the error did not influence the jury, or had
but a slight effect,” Thomas, 505 S.W.3d at 927 (quoting Motilla v. State, 78 S.W.3d 352, 355
(Tex. Crim. App. 2002)).
The State’s concluding remarks on the late afternoon of January 25 did not in so many
words urge the jury to decide that “that’s your truth” could be disbelieved because what really
mattered was “yes, yes.” Instead, the State modeled this mindset for the jury by the State’s
action of ignoring “that’s your truth” when describing the contents of the call as though all that
“Because the jury is the sole judge of a witness’s credibility, and the weight to be given the testimony, it may
22
choose to believe some testimony and disbelieve other testimony.” Lancon v. State, 253 S.W.3d 699, 707 (Tex.
Crim. App. 2008).
39
was said was “yes, yes.” Given that context, I agree that the limited read-back was harmful. I
agree that there should be a new trial.
Where I differ with the majority opinion is that, in my view, the new trial should include
the continuous sexual abuse of a child charge. See TEX. PENAL CODE ANN. § 21.02. The
majority opinion states that there was insufficient evidence to support the jury’s verdict on that
charge. I believe the evidence was sufficient, if barely so. Which is to say that my disagreement
with the majority is slight.
I do, however, comment further on the “hypothetically correct jury charge,” and in so
doing comment on how continuous sexual abuse charges should be submitted to the jury. The
jury charge issue, in my view, gets to the core issues that arise time and again in continuous
sexual abuse cases.
The facts here tread the very borderline between speculation and reasonable inferences.23
This is chiefly because the time P.S. spent in the green house straddles the dateline between
when she was thirteen, and any offense against her would fall within the scope of Section 21.02,
and when she had turned fourteen, at which point any offense would fall beyond the reach of
23
This is not the first time this Court has been presented with facts testing the borderline between reasonable
inferences and speculation in a continuous sexual assault case. See Witcher v. State, No. 06-20-00040-CR, 2020
WL 7483953, at *1 (Tex. App.—Texarkana Dec. 21, 2020) (mem. op., not designated for publication), rev’d and
remanded by 638 S.W.3d 707 (Tex. Crim. App. 2022). Hooper v. State is perhaps the best articulation of how
reasonable inference and speculation come uncomfortably close at the dividing line. See Hooper v. State, 214
S.W.3d 9, 16 (Tex. Crim. App. 2007). There, the Texas Court of Criminal Appeals instructed, “A conclusion
reached by speculation may not be completely unreasonable, but it is not sufficiently based on facts or evidence to
support a finding beyond a reasonable doubt.” Id. Whatever words one chooses for the converse of “not . . .
completely unreasonable,” the implication is that there can be some measure of reasonableness, even in speculation.
Id. Ultimately, as the majority holds, the test is whether there was enough evidence for a rational jury to have
“found the essential elements of the crime beyond a reasonable doubt.” Id. at 15 (citing Jackson, 443 U.S. at 318–
19; Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006); Guevara, 152 S.W.3d at 49).
40
Section 21.02. While there was testimony about events in the green house, there was no direct
testimony addressing when each of the multiple events at the green house fell on that timeline.
Additionally, there was no direct testimony establishing the “30 days or more” requirement of
Section 21.02(b)(1)(2) regarding the events in the green house. TEX. PENAL CODE ANN.
§ 21.02(b)(1)(2).
There was, however, testimony of a clear starting point within the scope of Section 21.02.
That was the telephone-call incident shortly after the return from Houston to the green house. In
addition, P.S. testified that Balderas sexually assaulted her “whenever” she went down the stairs
in the green house to do laundry or to go to what at some unspecified point in time became her
room. “[W]henever” could be when P.S. was thirteen, or when she was fourteen, or both. To
conclude that subsequent events were both thirty days after the telephone-call incident but still
before P.S. turned fourteen, the jury would have to draw some inferences from the testimony
about the event(s) at the steps to the laundry room. The jury’s verdict indicates that they drew
inferences that those events met the time parameters of Section 21.02. I believe there was
sufficient evidence for the jury to draw such inferences. I agree that the testimony of P.S.
regarding the events at the steps to the laundry room does not fall squarely and directly within
the time requirements of Section 21.02. But neither can it be said that the testimony conclusively
describes incidents outside of those time parameters.24
24
Which is to say I do not see the testimony as compelling the jury’s verdict to be set aside. In Witcher, the Texas
Court of Criminal Appeals affirmed a continuous sexual assault conviction even though there was “give or take” and
“around that time” testimony regarding the date of the first instance of sexual abuse. Witcher, 638 S.W.3d at 710.
In my view, the Texas Court of Criminal Appeals found that testimony sufficient in two ways. First, the Texas
Court of Criminal Appeals examined, and determined, the temporal meaning of the testimony in context. Id.
41
The majority concludes that, because the time P.S. spent in the green house straddles the
dateline between when she was thirteen and when she had turned fourteen, and because the State
offered no direct testimony to put those events within Section 21.02, there is insufficient
evidence to draw any inference at all regarding the timing of those events. In short, the State did
not carry its burden. Were it not for Witcher, I would be inclined to agree.
In light of Witcher’s affirmance of a continuous sexual assault conviction despite vague
temporal testimony, my view is that a reasonable jury could find that the “whenever” testimony
about the stairwell incidents was just barely enough from which a jury could reasonably infer
that one or more stairwell incidents happened thirty or more days after the phone call, but before
P.S. turned fourteen. Put another way, setting aside the jury’s verdict has the effect of saying
that the only reasonable conclusion that a jury could come to is that there was the telephone-call
incident (combined perhaps with stairwell events within the next twenty-nine days) and that,
thereafter, Balderas left P.S. alone until she turned fourteen. On the testimony in this trial, I do
not view that as a conclusion that can be imposed on this jury. Again, though, I emphasize the
closeness of this matter, for reasons expressed in the majority’s analysis.
(finding the testimony to mean “June 10th or at worst a few days afterwards”). Second, and relatedly, the Texas
Court of Criminal Appeals found that “give or take” and “around that time” did not describe a start date in conflict
with the jury’s verdict. Id. (“Given the context of the testimony, ‘around’ could not have meant sixteen days or
more later” (emphasis added)). Thus, in Witcher, the Texas Court of Criminal Appeals found that the testimony in
that case, understood in context, “could not have” described events outside the time parameters of the offense. The
present case, therefore, is different. On the one hand, the testimony in this case could describe events outside of the
time parameters of the offense. That is reason to find, as this Court’s majority does, that this case falls on the
speculation side of Witcher. On the other hand, the testimony in this case, though imprecise, could also describe
events within the parameters of the offense. It is for that reason I return to the overarching question of Witcher,
namely, whether “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Id. at 709–10 (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
42
Because I would remand for a new trial on the continuous sexual abuse charge, I briefly
address Balderas’s point about the jury charge. The charge to this jury was not consistent with
this Court’s decision in Lewis v. State, No. 06-21-00021-CR, 2022 WL 630288, at *1 (Tex. App.
Texarkana—Mar. 4, 2022, pet. ref’d) (mem. op., not designated for publication), cert. denied,
No. 22-6098, 2023 WL 192044 (U.S. Jan. 17, 2023). The State implicitly concedes as much by
urging us to “re-consider” Lewis. I see no reason to revisit Lewis. Nor do I see the majority’s
hypothetically-correct-jury-charge analysis as revisiting Lewis.
At the core, the State’s argument against Lewis is of a piece with the State’s contention
that time is not a material element of a Section 21.02 charge. In Lewis, this Court followed the
decisions of our sister courts in Houston First District and in Amarillo by requiring the jury to be
charged on the temporal relationship of the “first and last act” consistent with the requirements
of Section 21.02. Smith v. State, 340 S.W.3d 41 (Tex. App.—Houston [1st Dist.] 2011, no pet.);
Turner v. State, 573 S.W.3d 455, 461–63 (Tex. App.—Amarillo 2019, no pet.).
By asking that Lewis be reconsidered, the State is, in my view, asking that the statutory
requirements of Section 21.02 be rendered a practical nullity. In the view of the State, the jury
need not unanimously agree on “the dates as to when Balderas committed his ‘first and last acts
of sexual abuse’ for the 30-day period of duration.” More broadly, the State cites to Dixon v.
State for the remarkable proposition that “time was not a material element for this offense.” See
Dixon v. State, 201 S.W.3d 731, 736 (Tex. Crim. App. 2006). Dixon, however, predates Section
21.02 of the Texas Penal Code and, indeed, may very well have prompted the Texas Legislature
to create Section 21.02. Dixon, 201 S.W.3d at 736–37. What is more, the Texas Legislature can,
43
by its words, make time a material element of an offense. Garcia v. State, 981 S.W.2d 683, 686
n.4 (Tex. Crim. App. 1998) (“It is possible, of course, for time to be made material by the
definition of an offense.”). That is what the Texas Legislature did with the words of Section
21.02.
I suspect that clarity on the jury charge regarding continuous sexual abuse charges might
prompt more direct testimony on the temporal requirements which, in turn, might reduce the
frequency with which continuous sexual abuse cases tread the borderline between reasonable
inference and speculation.
The issue was recently before the Texas Court of Criminal Appeals. Smith, Turner, and
Lewis were recently considered by the Fourteenth District Court of Appeals in Houston.
Pelcastre v. State, 654 S.W.3d 579, 587 (Tex. App.—Houston [14th Dist.] 2022. pet. ref’d). In
Pelcastre, the Fourteenth Court suggested that the issue of the jury charge in continuous sexual
assault cases was ripe for consideration by this State’s highest court. Id. at 588 n.4. Petition,
however, was refused, which leaves in place the decision of our sister court. Regarding the jury
charge, the majority in Pelcastre noted the conflicting decisions on how to charge the jury in
continuous sexual abuse cases, but ultimately decided that there was no harm. Id. at 588 (“At the
very least, the appellate courts’ conflicting decisions about whether the language in the
application paragraph before us is sufficiently confusing to constitute charge error counsels in
44
favor of proceeding to a harm analysis.”).25 Accordingly, I see nothing in Pelcastre, or the
refusal of petition in Pelcastre, that compels us to revisit Lewis.
Jeff Rambin
Justice
Date Submitted: January 18, 2023
Date Decided: May 25, 2023
Do Not Publish
25
Notably, the Pelcastre court was able to conclude that, if there was charge error, it was not harmful. The Pelcastre
court was able to do so because, in that case, there was concise testimony addressing the temporal elements of the
offense. Id. at 584 (“Q. And that happened for more than thirty days? A. Yes.”).
45