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 

377th Judicial District Court

Of Victoria County, Texas

Cause No. 14-04-27914-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 APPEAL

CORPUS CHRISTI, TEXAS

3/31/2015 8:02:05 AM

DORIAN RAMIREZ

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 3/31/2015 8:02:05 AM DORIAN E. RAMIREZ Clerk
First Amended Brief of Appellee

Victoria County Criminal District Attorney

No. 13-14-00684-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 ..................................3-5

 II. Appellant has waived any claim of error based on 

 the prosecution’s opening argument by failing to

 object at trial ............................................................................5-8

PRAYER.................................................................................................... 9

SIGNATURE............................................................................................. 9

CERTIFICATE OF COMPLIANCE................................................... 10

CERTIFICATE OF SERVICE ............................................................. 11
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Victoria County Criminal District Attorney

No. 13-14-00684-CR

iii

INDEX OF AUTHORITIES

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. State, 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 475 (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 Statutes

TEX. CODE CRIM. PROC. art. 36.01 (West 2007) ............................. 4
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Victoria County Criminal District Attorney

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Texas Rules

TEX. R. APP. 9.4..................................................................................... 10

TEX. R. APP. 33.1..................................................................................... 6
First Amended Brief of Appellee

Victoria County Criminal District Attorney

No. 13-14-00684-CR

1

NO. 13-14-00684-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 

District 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]. Appellant’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. [RR-IV-12]. This statement did not draw any 
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Victoria County Criminal District Attorney

No. 13-14-00684-CR

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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-IV14]. 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-IV-15]. This statement 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-IV-112]. Deputy Ramirez 

described making contact with the Appellant on the night of the offense. 

[RR-IV-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-IV-120].

The Appellant was found guilty of the charged offense. [RR-IV-203]. 

The Appellant was sentenced to 99 years imprisonment. [RR-V-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 objects to was neither 

a direct nor implied comment on the Appellant not testifying. Rather the 
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Victoria County Criminal District Attorney

No. 13-14-00684-CR

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statement was permissible opening statement as it was reference evidence 

that the State would present during its trial. 

 Furthermore, Appellant did not make 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 preserve 

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 that 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. This claim 

cannot be supported by the record. [RR-IV-12-16].

 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 on 
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Victoria County Criminal District Attorney

No. 13-14-00684-CR

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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 language 

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 at 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 the State’s opening argument made no reference to 

the defendant not testifying. [RR-II-12]. Nor did the objected to statement 

make reference to evidence that only the defendant could provide. Id. 

Instead the statement clearly referred to relevant evidence that was going to 

be provided by a State witness, Deputy Isaac Ramirez, who questioned the 

Appellant on the night of the offense and was told by the Appellant that he 

did not remember what happened. [RR-IV-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 improper for the 
First Amended Brief of Appellee

Victoria County Criminal District Attorney

No. 13-14-00684-CR

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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 other 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.) 

The 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.

 II. 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 Appellant electing not to testify, the 

Appellant would still not be entitled to any relief because he failed to make 
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Victoria County Criminal District Attorney

No. 13-14-00684-CR

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an objection at trial on this issue and thus has waived any claim for appellate 

review.

 In order to preserve error for appellate review, 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 

object 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’s 
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Victoria County Criminal District Attorney

No. 13-14-00684-CR

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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 

people involved in the incident remembering what happened. [RR-IV-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, specific objections exists for very 

sensible reasons. The best way to insure an efficient, fair trial process for all 

parties is to resolve any errors at the lowest level of court possible. Timely 

objections are critical for this because they give the trial 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 objection themselves or perhaps find an alternate, nonobjectionable 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 trial 
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Victoria County Criminal District Attorney

No. 13-14-00684-CR

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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. 
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Victoria County Criminal District Attorney

No. 13-14-00684-CR

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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 24034895

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 TEXAS
First Amended Brief of Appellee

Victoria County Criminal District Attorney

No. 13-14-00684-CR

10

CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I, 

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County, 

Texas, certify that the number of words in Appellee’s First Amended Brief 

submitted on March 31, 2015, excluding those matters listed in Rule 9.4(i)(1) 

is 1,583.

/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
First Amended Brief of Appellee

Victoria County Criminal District Attorney

No. 13-14-00684-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 7422, Victoria, Texas, 77903,

Attorney for the Appellant, Eugenio Valdez, by depositing same in the 

United States Mail, postage prepaid on the day of March 31, 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