NO. 13 -14- 00684
- CR

IN THE COURT OF APPEALS FOR THE THIRTEENTH DISTRICT OF TEXAS AT CORPUS CHRISTI

EUGENIO VALDEZ , Appellant,
v. THE STATE OF TEXAS, Appellee. On Appeal from the 377 th Judicial District Court Of Victoria County, Texas Cause No. 14

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- 27914 -D

FIRST AMENDED BRIEF FOR THE STATE OF TEXAS

STEPHEN B. TYLER Criminal District Attorney

Victoria County, Texas
BRENDAN WYATT GUY Assistant Criminal District Attorney Victoria County, Texas 205 N. Bridge St. Ste. 301, Victoria, Texas 77901

- 6576 bguy@vctx.org (361) 575

- 0468 (361) 570

- 1041 (fax) State Bar No. 24034895 Attorneys for the State of Texas
ORAL ARGUMENT NOT REQUESTED ACCEPTED 13-14-00684-CR THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 3/31/2015 8:02:05 AM DORIAN RAMIREZ

CLERKFirst Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR ii TABLE OF CONTENTS PAGE (S)
TABLE OF CONTENTS
................................ ................................ ......... ii
INDEX OF AUTHORITIES
................................ ............................... iii
- iv
STATEMENT OF THE FACTS
................................ .......................... 1
- 2
SUMMARY OF ARGUMENT
................................ ............................. 2
- 3
ARGUMENT
................................ ................................ .......................... 3
- 8 I. The State did not make any reference to Appellant not testifying in its opening argument
................................ .. 3
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I I. Appellant has waived any claim of error based on the prosecution’s opening argument by failing to object at trial
................................ ................................ ............ 5
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PRAYER
................................ ................................ ................................ .... 9
SIGNATURE
................................ ................................ ............................. 9
CERTIFICATE OF COMPLIANCE
................................ ................... 10
CERTIFICATE OF SERVICE
................................ ............................. 11First Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR iii INDEX OF AUTHORITIE S

United States Supreme Court Cases Cockrell v. Texas, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed. 2d 548 (1997)
........................ 6

Texas Cases Cockrell v. State, 933 S.W. 2d 73 (Tex. Crim. App. 1996)
..................... 6 Cruz v. State, 225 S.W. 3d 546(Tex. Crim. App. 2007)
.......................... 4
Garcia v. S tate, 887 S.W. 2d 862 (Tex. Crim. App. 1994)
...................... 6 Garza v. State, 126 S.W. 3d 79 (Tex. Crim. App. 2004)
......................... 7 Hammock v. State, 46 S.W. 3d 889 (Tex. Crim. App. 2001)
.................. 6 Hollins v. State, 805 S.W. 2d 4 75 (Tex. Crim. App. 1991)
..................... 7 Moore v. State, 999 S.W. 2d 385 ( Tex. Crim. App. 1999)
...................... 6 Nowlin v. State, 507 S.W. 2d 534 (Tex. Crim. App. 1974)
..................... 4 Taylor v. State, 947 S.W. 2d 698 (Tex. App.
- Ft. Worth 1997, pet. ref’d)
................................ ................... 4 Trevino v. State, 174 S.W. 3d 925 (Tex. App.
- Corpus Christi 2005, pet. ref’ d)
................................ ........... 8

Texas Statu tes
TEX. CODE CRIM. PROC. art. 36.01 (West 2007 )
............................. 4First Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR iv Texas Rules
TEX. R. APP. 9.4
................................ ................................ ..................... 10
TEX. R. APP. 33.1
................................ ................................ ..................... 6First Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 1 NO. 13
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- CR
IN THE COURT OF APPEALS FOR THE THIRTEEN DISTRICT OF TEXAS AT CORPUS CHRISTI
EUGENIO VALDEZ

... ... ............... ...................................Appelant

v. THE STATE OF TEXAS,..................................................Appellee
* * * * *
STATE’S FIRST AMENDED BRIEF ON THE MERITS
* * * * *
TO THE HONORABLE COURT OF APPEALS: COMES NOW, THE STATE OF TEXAS , by and through her Criminal
Distric t Attorney, Stephen B. Tyler, and as Appellee in the above numbered and entitled cause, and files this the Appellee’s brief showing:
STATEMENT OF THE FACTS Appellant was indicted for the offense of aggravated assault on April 17, 2014. [RR

- I

- 6]. Appell ant’s case was called for trial on November 3, 2014. [RR

- III

- 1]. During the State’s opening argument, the prosecutor stated that only
two of the three individuals involved in the incident at issue in the trial could remember what happened. [R R

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- 12]. This statement did not draw anyFirst Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 2 objection from the defense. [RR

- IV

- 12]

. Further, on in the State’s opening argument, the prosecutor described how the evidence would show that the defendant had told the police he did not remember what happened. [RR

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14]. This statement did not draw any objection from the defense. Id. Further, on in the opening argument the prosecutor then reiterated that the defendant could not articulate what happened on the night of the offense. [RR

- I V

- 15]. This statemen t also did not draw any objection from the
defense. Id. During the case in chief, the State called Deputy Isaac Ramirez of the Victoria County Sheriff’s Office to testify. [RR

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- 112]. Deputy Ramirez described making contact with the Appellant on the n ight of the offense. [RR

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- 117

- 119]. Deputy Ramirez also described questioning the Appellant about the events of that night, and the Appellant continuously telling him that he could not remember. [RR

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- 120]. The Appellant was found guilty of the char ged offense. [RR

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- 203]. The Appellant was sentenced to 99 years imprisonment. [RR

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- 67].
SUMMARY OF THE ARGUMENT The State did not make any reference to Appellant not testifying in its opening argument. The statement that Appellant now object s to was neither a direct nor implied comment on the Appellant not testifying. Rather theFirst Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 3 statement was permissible opening statement as it was reference evidence that the State would present during its trial. Furthermore, Appellant did not m ake any objection to the State’s opening argument at trial. Accordingly, Appellant has waived any claim of error related to that argument. Nor is there any reason to change existing Texas law which requires a timely, specific objection in order to preser ve appeal on claims of improper prosecutorial comments. The existing Texas law on that subject is a sensible standard that best balances the interest of efficient judicial administration with fairness to all parties and thus there is no reason to change t hat law.
ARGUMENT
I. The State did not make any reference to Appellant not testifying in its opening argument. Appellant’s sole claim of error is to allege that the State made a reference to his not testifying in the State’s opening argument. Thi s claim cannot be supported by the record. [RR

- IV

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- 16]. A prosecutorial comment amounts to an impermissible comment on a defendant’s failure to testify only if, when viewed from the jury’s standpoint, the comment is manifestly intended to be, or is of such character that a typical jury would naturally and necessarily take it to be a comment onFirst Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 4 the defendant’s failure to testify. Cruz v. State, 225 S.W. 3d 546, 548 (Tex. Crim. App. 2007). Moreover, it is not enough that the objected to langu age might be construed as an implied or indirect allusion to the defendant not testifying. See Nowlin v. State, 507 S.W. 2d 534, 536 (Tex. Crim. App. 1974). The objected to remark must either have necessarily referred to the defendant not testifying or a t least called the jury’s attention to the absence of evidence that only the testimony from the defendant could have provided.
Id. In the present case t he State’s opening argument ma de no reference to the defendant not testifying. [RR

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- 12]. Nor did the objected to statement make reference to evidence that only the defendant could provide. Id.
Instead the statement clearly refer red to relevant evidence that was going to be provided by a State witness, Deputy Isaac Ramirez, who questioned the App ellant on the night of the offense and was told by the Appellant that he did not remember what happened. [RR

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- 14, 120]. Describing evidence
that the State intends to offer at trial is perfectly proper opening argument. The State has a statutory right in opening argument to inform the jury of the facts which are expected to be proved by the State in support of its case. See TEX. CODE CRIM. PRO. art. 36.01(a)(3); Taylor v. State, 947 S.W. 2d 698, 706 (Tex. App.

- Ft. Worth 1997, pet. ref’ d). Nor is it im proper for theFirst Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 5 State to make the jury aware of what the Appellant told police on the night of the offense. Such evidence is obviously relevant and has nothing to do with whether the Appellant will ultimately decide to testify at trial. Nor can
it even be logically inferred that just because a defendant told police that he did not remember what happened that that means he will not be testifying. (Even without memory of the actual night in question, a defendant could still be called upon to testify about o ther potentially relevant factors such as the defendant’s own character or the character of or potential sources of bias in the State’s witnesses, so informing the jury that the Appellant did not remember what happened does not even indirectly suggest that the Appellant would not be testifying.)
T he State’s opening argument did nothing but inform the jury of
relevant facts that the State intended to prove (and in fact did later admit ) at
trial. Thus the argument was proper opening argument and there was no

error.
I I. Appellant has waived any claim of error based on the prosecution’s opening argument by failing to object at trial. Furthermore, even if the State’s opening argument was deemed to
include some kind of reference to App ellant electing not to testify, the Appellant would still not be entitled to any relief because he failed to makeFirst Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 6 an objection at trial on this issue and thus has waived any claim for appellate
review.
In order t o preserve error for appellate r eview, the complaining party must present a timely and specific objection to the trial court, and obtain a ruling. TEX. R. APP . P. 33.1(a). This applies even to a claim that the prosecution impermissibly commented on a defendant’s decision not to testify. See Cockrell v. State, 933 S.W. 2d 73, 89 (Tex. Crim. App. 1996)(holding that defendant waived appellate review of his claim that the prosecutor impermissibly commented on defendant’s failure to testify by not objecting at trial) , cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed. 2d 548 (1997) ; Garcia v. State, 887 S.W. 2d 862, 877 (Tex. Crim. App. 1994)(holding that no error was preserved when the defendant failed to obje c t to the State commenting on the defendant not testifying), abrogated in part on other grounds by Hammock v. State, 46 S.W. 3d 889, 892

- 893 (Tex. Crim. App. 2001). This is because in all but the most blatant instances, an instruction to disregard from the trial court will cure the damage from an improper comment on a defendant not testifying. See
Moore v. State, 999 S.W. 2d 385, 405 (Tex. Crim. App. 1999). As such, since the defendant can cure any error from an improper prosecutorial comment by seeking relief from the trial court, it is the defendant’sFirst Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 7 responsibility to seek that relief at trial. If they fail to do so they waive any claim of error on that issue for appeal. In the present case the Appellant did not make any sort of objection to the prosecutor’s statement in opening argument about only two of the three

peop le involved in the incident remembering what happened. [RR

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- 12]. Therefore Appellant has waived any claim of error on this issue. Nor is there any compelling reason to change long standing Texas law on this issue. The requirement for timely, s pecific objections exists for very
sensible reason s. The best way to insure an efficient, fair trial process for all parties is to resolve any errors at the lowest level of court poss ible. Timely objections are critical for this because they give the tri al court the opportunity to cure any error that might have occurred. See Hollins v. State, 805 S.W. 2d 475, 376 (Tex. Crim. App. 1991). Additionally, raising objections at the trial level also gives the opposing party that opportunity to remove the objec tion themselves or perhaps find an alternate, non

objectionable way of introducing the evidence they hope to present. See
Garza v. State, 126 S.W. 3d 79, 82 (Tex. Crim. App. 2004). Therefore it is only logical to require objections to be made at the trial level in order to preserve issues for appellate review. Nor is the process for preserving potential error unduly burdensome. All a party has to do is : 1) let the trialFirst Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 8 court know what they want, 2) explain why they think they are entitled to
that relief , and 3) explain what they want and why they deserve it with sufficient clarity for the judge to understand them at a time when the judge is in a proper position to do something about the issue. See Trevino v. State, 174 S.W. 3d 925, 927 (Tex. App.

- Corpus Christi 2005, pet. ref’d). As such existing Texas law on this principle is sound and should be maintained, which means that Appellant has waived any error on this claim.First Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 9 PRAYER WHEREFORE, PREMISES CONSIDERED, the State prays that this Honorable Court affirm the judgment of the trial court.

. Respectfully submitted,

STEPHEN B. TYLER CRIMINAL DISTRICT ATTORNEY /s/ Brendan W. Guy Brendan W. Guy Assistant Criminal District Attorney SBN 2 4034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 E

- mail: bguy@vctx.org Telephone: (361) 575

- 0468 Facsimile: (361) 576

- 4139

ATTORNEYS FOR THE APPELLEE, THE STATE OF TEXA SFirst Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 10 CERTIFICATE OF COMPLIANCE In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I, Brendan Wyatt Guy , Assistant Criminal Dist rict Attorney, Victoria County, Texas, certify that the number of words in Appell ee ’s First Amended Brief
submitted on March 3 1 , 2015, excluding those matters listed in Rule 9.4(i)( 1 )
is 1 , 583

.

/s/ Brendan W. Guy Brendan W. Guy Assist ant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 E

- mail: bguy@vctx.org Telephone: (361) 575

- 0468 Facsimile: (361) 576

- 4139First Amended Brief of Appellee Victoria County Criminal District Attorney No. 13

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- CR 11 CERTIFICATE OF SERVICE I, Brendan Wyatt Guy , Assistant Criminal District Attorney, Victoria County, Texas, certify that a copy of the foregoing first amended brief has
been served on W. A. (Bill) White , P.O. Box 74 22, Victoria, Texas, 77903, Attorney for the Appell ant , Eugenio Valdez, by depositing same in the United States Mail, postage prepaid on the day of March 3 1 , 2015

.

/s/ Brendan W. Guy Brendan W. Guy Assistant Criminal District Attorney SBN 24034895 205 North Bridge Street, Suite 301 Victoria, Texas 77902 E

- mail: bguy@vctx.org Telephone: ( 361) 575

- 0468 Facsimile: (361) 576

- 4139