## COURT OF APPEALS
SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02

- 12

- 00206

- CR

EDUARDO ESPINOZA APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM CRIMINAL DISTRI CT COURT NO. 2 OF TA RRANT COUNTY

TRIAL COURT NO. 1267 998R

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### MEMORANDUM OPINION 1

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A jury convicted Appellant Eduardo Espinoza of two counts of aggravated

sexual assault of a child under fourteen years of age and sentenced him to

confinement for life. In a motion for new trial, Espinoza argued that prosecutorial

and judicial misconduct during trial had resulted in a violation of his constitutional

1 See Tex. R. App. P. 47.4.2

rights. The Honorable Judge Ruben Gonzalez Jr. was assigned to hear the

motion and denied it after a hearing.

In a single point, Espinoza argu es that the t rial court abuse d its discretion

by denying his motion for new trial because his constitutional rights were violated

when Eunice Romero, his girlfriend and the complainant’s aunt, was prevented

from testifying after the prosecutor threatened her with charges of perjury an d

witness tampering and the trial judge admonished her regarding the possibility of

these charges before appointing counsel for her.

At the opening of the second day of trial, the following exchange took place

between the trial court and Romero outside th e presence of the jury:

THE COURT: I was just informed

– what’ s your name?

MS. ROMERO: Eunice Romero.

THE COURT: I’ m sorry?

MS. ROMERO: Eunice Romero.

THE COURT: Eunice Romero? I was just informed by the lawyer for Mr. Espinoza that you want to test ify about some allegations that could have occurred concerning a father of this injured party; is that correct?

MS. ROMERO: Yes, sir.

THE COURT: And it’ s my understanding that you haven't talked to the police about this or anybody else

—

MS. ROMERO: N o, sir.

THE COURT:

- in authority other than the lawyer for Mr. Espinoza; is that correct?3 MS. ROMERO: Yes, sir.

THE COURT: You’ re also the girlfriend of Mr. Espinoza?

MS. ROMERO: Yes

.
THE COURT: All right. Now

-
[DEFENSE COUNSEL] : And she’ s also th e cousin of the

father.

THE COURT: And you ’ re the cousin of the father?

MS. ROMERO: Yes, sir.

THE COURT: I haven’t decided whether or not that’ s relevant, and I’ m not going to ask you any questions about that because there

are consequences that can occu r, because i f you ’ re not telling the truth, the State can file perjury charges against you.

MS. ROMERO: Yes, sir.

THE COURT: Do you understand that?

MS. ROMERO: Uh

- huh.

THE COURT: They can also charge you with witness tampering if you were talking to some of t he witnesses about this who are involved in this case. So it can bec ome very serious and I want you to understand that. Be fore I decide whether or not it’ s relevant, I am going to ask you

— I think that you need a lawyer.

MS. ROMERO: Okay.

THE COURT: Because if something criminal comes out of this, you need to know what y our rights are. Do you understand?

MS. ROMERO: Uh

- huh.

THE COURT: Now, I know this lady is a lawyer and she talked with you

—4 MS. ROMERO: Yes.

THE COURT:

— but she doesn’ t represent you.

MS. ROMERO: Right.

THE COURT: She represents Mr. Espinoza. So you need somebody who is going to represent you if, in fact, this is going to take place. Can you hire a lawyer? Do you have any money to hire a lawyer?

MS. ROMERO: No.

T HE COURT: All right. Do you want me to appoint you a lawyer on this?

MS. ROMERO: Yes.

THE COURT: So he can talk with you?

MS. ROMERO: Yes.

THE COURT: Okay. Then I ’ ll do that. I want you to remain over there. Don’ t talk to anybody else about this u ntil I get some lawyer to talk with you about it. Okay?

MS. ROMERO: Okay.

THE COURT: Okay. Have a seat.

Espinoza did not object during or after the trial court’s discussion with

Romero, nor did he raise a complaint regarding the prosecutor’s conduct t owards

Romero at any point during the trial. Instead, after testifying on his own behalf,

Espinoza rested his case without calling the trial court’s attention back to Romero

and raised the issue for the first time in his motion for new trial.

Although the trial court has the discretion to grant a motion for new trial on

an unpreserved error raised in a post

- trial motion, if the trial court denies the5

motion for new trial, “the defendant, as the losing party, must have preserved that

same error before he ma y claim it as a basis for reversing the trial judge once he

moves into the appellate court.” State v. Herndon , 215 S.W.3d 901, 909 (Tex.

Crim. App. 2007) ; see Canales v. State , 98 S.W.3d 690, 699 (Tex. Crim. App.

2003) (holding appellant failed to preserv e complaint that prosecutor read letter

to jury with unfairly prejudicial inflection when appel lant made no objection while

letter was being read)

, cert. denied , 540 U.S. 1051 (2003); Cavazos v. State , 904

S.W.2d 744, 748 (Tex. App.

— Corpus Christi 1995, pe t. ref’d) (holding appellant

did not preserve complaint that trial court intimidated witness when appellant

failed to object at trial on that ground). Accordingly, we overrule Espinoza’s sole

point as unpreserved and affirm the trial court’s judgment. 2 S ee id .; see also

Tex. R. App. 33.1(a )(1).

2 While Espinoza attempts to sidestep the preservation requirements by arguing that the trial court abused its discretion by denying his motion for new trial

— as opposed to directly attacking the alleged misconduct and it s effect on his constitutional rights

— the court of criminal appeals clarified in Herndon that a trial court does not abuse its discretion when it denies a motion for new trial based on failure to preserve error. See 215 S.W.3d at 911 n.39. Here, Judge Go nzalez expressly noted that “if the lawyer believes that a witness is being precluded from testifying by [coercion], threats, [or] force or fraud, there are remedies available by making objections, making a proffer, [or] calling the witness outside the pre sence of the jury. And from the recor d, none of that was attempted.”6 /s/ Bob McCoy

BOB MCCOY JUSTICE

PANEL: LIVINGSTON, C.J. ; WALKER and MCCOY

, J J.

Livingston, C.J., concurs without opinion.

Walker, J.

, concurs without opinion.

DO NOT PUBLISH Tex. R. App. P. 47.2(b)

DELIVERED: September 18, 2014