Jose Manuel Bejarano v. State

Becker v. State COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS JOSE MANUEL BEJARANO, Appellant, v. THE STATE OF TEXAS, Appellee. § § § § § § No. 08-06-00183-CR Appeal from 112th District Court of Pecos County, Texas (TC # P-2629-112-CR) O P I N I O N Jose Manuel Bejarano appeals his conviction of attempted indecency with a child, enhanced by a prior felony conviction. After finding Appellant guilty, the jury found the enhancement paragraph true and assessed Appellant's punishment at imprisonment for a term of twenty years. Finding no error, we affirm. FACTUAL SUMMARY On October 28, 2005, Jacob Bustamantes was visiting with his children in Imperial, Texas. He and his former girlfriend, Aida Rodriguez, were driving around in his car with three-year-old Aidan and the complainant, eleven-year-old Peter Parker. (1) At around 7:30 p.m., they ran into Appellant, who is Bustamantes' uncle, and asked him if he wanted to go with them to Grandfalls, about eleven miles away. Appellant got into the backseat with Peter while Aidan sat in the front seat with Bustamantes and Rodriguez. They purchased some beer in Grandfalls and headed back to Imperial. Along the way, Bustamantes noticed that Appellant's behavior was different than usual. Appellant was normally talkative and joked around with Bustamantes. On this occasion, however, Appellant focused all of his attention on Peter and was "touchy-feely" with him, hugging him frequently. Appellant had never acted this way toward Peter or any of his other nephews. Bustamantes began watching Appellant in the rearview mirror and saw him put his hand on Peter's chest while whispering to him. Peter told Appellant to stop several times and Bustamantes also told him to leave Peter alone. Appellant told Bustamantes they were just playing around. The behavior continued so when they reached Imperial, Bustamantes stopped the car and got Peter out of the backseat. They went into a restroom at the community center and Bustamantes asked Peter what Appellant was doing. Bustamantes knew that Peter had been sexually abused when he was four years old but he had never talked to him about the details. Peter said that Appellant was rubbing his chest and moving his hand lower near his "private." When Appellant tried to touch Peter's "private," he pushed Appellant's hand away and told him to stop. Appellant also tried to kiss Peter and whispered that Peter should give him a kiss. When they returned to the car, Bustamantes told Appellant to get out of the car. As Appellant did so, he told Bustamantes, "Fuck your girlfriend, fuck your son." Bustamantes punched Appellant in the face and knocked him out. He got in the car and drove home, leaving Bustamantes where he fell. Bustamantes knew Appellant had been injured when he fell out of a vehicle and sometimes needed assistance to walk. He talked to his mother about what had happened and he told her to call the police while he went back to find Appellant. Appellant was already gone by the time Bustamantes returned. He returned home and called the sheriff's office. Deputy Sheriff Ron Tucker spoke with Bustamantes on the telephone and asked him to bring Peter to meet him and the Justice of the Peace, Arnold Braden, at the J.P.'s office in Imperial. The four of them met around12:30 a.m. on October 29. Tucker spoke with Peter and Bustamantes and J.P. Braden issued a warrant for Appellant's arrest. Tucker obtained the address where Appellant was staying and went to arrest him. Appellant initially would not get out of bed and was unsteady on his feet. Because Appellant kept trying to walk away from Tucker and get back in bed, Tucker decided to place Appellant in handcuffs. Tucker knew Appellant from the community and had seen him walking with a cane earlier that day. Once they were back at the J.P.'s office, Appellant became belligerent and vulgar when J.P. Braden tried to talk to him. Tucker then placed Appellant in his patrol car and transported him to the Pecos County Jail in Fort Stockton. During the drive, Appellant told Tucker he had better watch his back because he ran with the Mexican Mafia. Following Appellant's arrest, Tucker took a written statement from Bustamantes but Rodriguez said she did not see what happened and refused to give a statement. Tucker took Peter to Harmony Home, a child advocacy center in Odessa, to be interviewed. Peter testified at trial that he lived with his mother and brother in Monahans. In October before Halloween, he had gone to visit his father in Imperial. His father picked him up and took him to his grandmother's house. They went riding around in his father's car with Appellant. Peter sat in the left rear seat behind his father and Appellant sat in the backseat next to him. Peter fell asleep in the car and Appellant woke him up by touching him. Appellant was moving his left hand from one leg to the other, then to his private, and then up to his chest. Appellant was touching Peter over his clothes rather than under. Peter pushed Appellant's hand away and went back to sleep. When he woke up again, Appellant was trying to kiss him. Peter then told his father that he needed to go to the bathroom. They stopped at the park and his father walked with him to the restroom. His father asked what had happened and Peter told him that Appellant was touching him and had tried to kiss him. Aida Rodriguez testified for the defense. She recalled that when they picked up Appellant, he was so drunk that he could not open the car door. After they bought the beer in Grandfalls, Bustamantes gave beer to her, Appellant, and Peter. She told Bustamantes that Peter should not have beer but Bustamantes said he would do whatever he wanted with his children. During the drive, she heard Peter laughing and telling Appellant to stop so she turned around and looked in the backseat. She saw Appellant tickling Peter's stomach but she did not see Appellant touch Peter's private. Bustamantes told Appellant to stop but he continued to tickle Peter. Rodriguez was in custody at the time of trial because she had been on federal probation for possession of marihuana and had violated the terms of probation. But the State showed Rodriguez a copy of the judgment of conviction revealing that she had not been convicted of marihuana possession but had been convicted of making a materially false, fictitious, or fraudulent statement. When confronted with this discrepancy, Rodriguez said she would not snitch out her friends and the federal authorities would not let her just walk away. Peter's mother, Maria Villa, testified at trial that Peter had been molested when he was four years old by a sixteen-year-old whose family attended her mother's church. After the incident, she explained to Peter about good touches and bad touches but they had not had many conversations about the molestation. Following the incident in October of 2005, she asked Peter whether he remembered the prior incident and he said he did not. Berta Bustamantes, who is Appellant's sister and Jacob Bustamantes' mother, testified that she sometimes felt pressure over this case because she felt torn between Appellant and Jacob. She denied telling Appellant's attorney that Jacob had said he did not really see anything. She admitted, however, that Jacob had threatened her by saying she would not see her grandchildren again if she "said anything." The jury rejected Appellant's defense and found him guilty of attempted indecency with a child. At the punishment phase, the State introduced evidence that Appellant had been previously convicted of aggravated assault with a deadly weapon in 1998, of aggravated robbery in 1987, and of burglary in 1983. Peter's mother testified that his behavior had changed since the incident and he had not done well in school to the point that it was necessary for him to repeat the sixth grade. Dr. Daneen Milam, a certified neuropsychologist, examined Appellant and testified on his behalf. He had suffered a head injury in 1997 when he fell out of a vehicle. As a result of this accident, he had plates put into his head and began to experience seizures and blackouts. He was in an auto accident in 2001 which injured his spine and caused him to be in substantial pain. His IQ is 75 which is probably less than before the accidents. His motor skills are impaired and he cannot think clearly. Dr. Milam concluded that Appellant is an alcoholic which is problematic because he is on seizure and pain medications. Doctors also suspect that Appellant has Parkinson's disease although a definitive diagnosis has not been made. Dr. Milam believed that Appellant had suffered a seizure as the result of being struck by Jacob Bustamantes and that partially explained his behavior when he was arrested. She admitted that intoxication could have contributed to his post-arrest behavior. The jury found the enhancement paragraph true and assessed his punishment at imprisonment for a term of twenty years. On appeal, Appellant raises five issues pertaining to the admission of his statement to Deputy Tucker regarding the Mexican Mafia, the exclusion of Dr. Milam's expert testimony at the guilt-innocence phase, and a comment by the bailiff to Peter Parker. DEPUTY TUCKER'S TESTIMONY In Points of Error One and Two, Appellant contends the trial court erred by refusing to sustain his objections or grant his motion for mistrial pertaining to Deputy Tucker's testimony that Appellant made a threat following his arrest. He argues that the statement was not disclosed as required by the trial court's discovery order and should have been excluded. He further asserts that the statement amounted to an extraneous offense of which he was not given notice as required by Tex.R.Evid. 404(b). Finally, he maintains that the extraneous offense is not admissible under Rule 404(b) and should have been excluded under Tex.R.Evid. 403 because its prejudicial impact substantially outweighed any probative value. Following Appellant's arrest, Deputy Tucker transported Appellant to the Pecos County Jail in Fort Stockton. Appellant told Tucker he had better watch his back because he ran with the Mexican Mafia. Appellant objected to the testimony after it had been elicited on the grounds that the statement was not included in Deputy Tucker's report, it constituted an extraneous offense, and it was prejudicial. The court overruled these objections, refused Appellant's request for an instruction to disregard, and denied his motion for a mistrial. The Discovery Order Appellant did not object at trial that the prosecutor had not complied with the court's discovery order. Defense counsel's statement that the testimony was not in the deputy's report did not clearly inform the trial court that the State had violated the discovery order. Thus, the argument made on appeal is waived. Tex.R.App.P. 33.1. Even if the objection is sufficient to preserve the complaint, the argument is without merit. The discovery order required the State to produce "[a]ll statements by the Defendant pursuant to Tex. Code Crim. Proc. Art. 38.22 and all written statements made by the Defendant in connection with this offense." Article 38.22 applies only to written and recorded oral statements made by the accused during custodial interrogation. Tex.Code Crim.Proc.Ann. art. 38.22 (Vernon 2005); Holberg v. State, 38 S.W.3d 137, 141 (Tex.Crim.App. 2000); Dowthitt v. State, 931 S.W.2d 244, 258 (Tex.Crim.App. 1996); Morris v. State, 897 S.W.2d 528, 531 (Tex.App.--El Paso 1995, no pet.). Article 38.22, §5 specifically exempts statements which do not "stem from custodial interrogation." "Interrogation" refers not only to express questioning, but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect. See Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980). Although Appellant was in custody, his statement was not the product of express questioning or its functional equivalent. See id. at 300-01, 100 S.Ct. at 1689-90. Consequently, it does not fall within the ambit of Article 38.22, and it was not covered by the trial court's discovery order. Extraneous Offense Appellant also complains that the State did not provide him notice of its intent to introduce this extraneous offense during the guilt-innocence phase of trial. Appellant did not object at trial that the State had not given him notice of the extraneous offense as required by Rule 404(b). Counsel's statement that the threat was not in the deputy's report is not sufficiently specific to inform the trial court that the State had not included the threat in its Rule 404(b) written notice. Therefore, the argument is waived. Tex.R.App.P. 33.1; Blackmon v. State, 80 S.W.3d 103, 107 (Tex.App.--Texarkana 2002, pet. ref'd)(lack of objection to State's failure to give notice of extraneous offense waives issue for appellate review). But counsel did preserve Appellant's argument that the threat is an inadmissible extraneous offense. A trial court's admission of extraneous offenses is reviewed for an abuse of discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App.), cert. denied, 546 U.S. 962, 126 S.Ct. 481, 163 L.Ed.2d 367 (2005). If the trial judge's ruling is within the zone of reasonable disagreement, there is no abuse of discretion. Id. We view the evidence in the light most favorable to the trial judge's ruling. See Corbin v. State, 85 S.W.3d 272, 282 (Tex.Crim.App. 2002). Rule 404(b) provides that: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . . Tex.R.Evid. 404(b). Evidence of extraneous crimes or bad acts that a defendant may have perpetrated cannot be introduced at the guilt-innocence phase to show the defendant acted in conformity with his criminal nature and therefore committed the offense for which he is on trial. Tex.R.Evid. 404(b); Lockhart v. State, 847 S.W.2d 568, 571 (Tex.Crim.App. 1992). But extraneous offenses may be admitted for other purposes, such as proving "motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Tex.R.Evid. 404(b); Lockhart, 847 S.W.2d at 571. The list of other purposes identified in Rule 404(b) is not exclusive. Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993). Appellant focuses most of his argument on the portion of the statement in which Appellant claimed affiliation with the Mexican Mafia and he cites to cases where evidence of gang affiliation has been permitted under Rule 404(b) to prove motive or intent. See e.g., Medina v. State, 7 S.W.3d 633, 644 (Tex.Crim.App. 1999)(motive and intent); Williams v. State, 974 S.W.2d 324, 331 (Tex.App.--San Antonio 1998, pet. ref'd)(motive). Appellant's claim that he ran with the Mexican Mafia is part and parcel of his threat against Deputy Tucker. Appellant did not simply state that Deputy Tucker should watch his back but told him that he should watch his back because Appellant ran with the Mexican Mafia. Thus, Appellant used the Mexican Mafia reference to give more weight to his threat. In addressing the admissibility of Appellant's threatening statement, we will address it as a whole rather than splitting it into two parts. Although not expressly identified as one of the other purposes in the rule, evidence of an extraneous offense may be admissible in order to show consciousness of guilt. See Ransom v. State, 920 S.W.2d 288, 299 (Tex.Crim.App. 1996)(op. on rehearing); Madden v. State, 911 S.W.2d 236, 242 (Tex.App.--Waco 1995, pet. ref'd; Torres v. State, 794 S.W.2d 596, 598-99 (Tex.App.--Austin 1990, no pet.). A 'consciousness of guilt' is perhaps one of the strongest indicators of guilt. Torres v. State, 794 S.W.2d 596, 598-600 (Tex.App.--Austin 1990, no pet.), It is consequently a well accepted principle that any conduct on the part of a person accused of a crime subsequent to its commission, which indicates a 'consciousness of guilt' may be received as a circumstance tending to prove that he committed the act with which he is charged. Id. Appellant's threat to harm Deputy Tucker has relevance beyond character conformity because it shows a consciousness of guilt. See Madden, 911 S.W.2d at 242 (threat to leave the state and kill police officers who tried to stop him was admissible because it showed consciousness of guilt). We next consider whether the threat should be excluded under Rule 403 because its probative value is substantially outweighed by the danger of unfair prejudice. Evidence showing a consciousness of guilt possesses substantial probative value. Torres, 794 S.W.2d at 598-600. While the threat was prejudicial to Appellant's case, the record does not support a conclusion that the danger of unfair prejudice substantially outweighed the probative value. Appellant argues that there is a danger that the jury based its decision on gang membership rather than on the facts of the case. The State did not introduce any other evidence about Appellant's gang affiliation or the activities of the Mexican Mafia and it did not mention Appellant's claimed gang affiliation again in the presence of the jury. Finding no abuse of discretion, we overrule Points of Error One and Two. EXCLUSION OF EXPERT TESTIMONY In Point of Error Three, Appellant maintains that the trial court erred by refusing to allow Dr. Daneen Milan to testify as an expert during the guilt-innocence phase of trial. A trial court's determination of a witness's qualifications as an expert and its decision to allow expert testimony are reviewed for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Rule 702 of the Texas Rules of Evidence provides that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex.R.Evid. 702. An expert witness must qualify as an expert in the relevant field by reason of his knowledge, skill, experience, training, or education. See Tex.R.Evid. 702; Alvarado v. State, 912 S.W.2d 199, 215-16 (Tex.Crim.App. 1995). An offering party must establish that an expert holds the requisite knowledge, experience, skill, training, or education regarding a specific issue, which, in turn, qualifies the expert to give an opinion on that particular subject. Broders v. Heise, 924 S.W.2d 148, 153 (Tex. 1996). Prior to trial, Appellant's attorney filed an ex parte motion to have an expert in psychiatry or psychology appointed to assist him in the evaluation, preparation, and presentation of a defense. He stated in his motion that Appellant had suffered several head injuries and he required the assistance of a mental health expert to determine whether Appellant was legally sane at the time of the offense. Additionally, a mental health expert could evaluate Appellant's injuries and mental illness and potentially offer evidence in mitigation of punishment. The trial court granted the motion and at Appellant's request appointed Dr. Daneen Milam. During the guilt-innocence phase of trial and outside the presence of the jury, Appellant offered Dr. Milam as an expert on the characteristics of sexual predators and the characteristics of children who have been sexually abused. Dr. Milam is a board certified neuropsychologist. She is registered with the state of Texas as a treatment provider for sex offenders. Dr. Milam also has a specialization in substance abuse and other addictive disorders. She has operated a testing lab in San Antonio since 1982. In this facility, she performs independent assessments for insurance companies. Additionally, she has contracted with Child Protective Services for more than fifteen years and has performed approximately one thousand evaluations for CPS. In these evaluations, she examines parents to assess their capacity to parent and determine what services they need in order to have their children returned to them. If the parents are accused of sexual misconduct, they are referred to a program called PACE. At one time, Dr. Milam had a contract to perform all of the PACE assessments. Dr. Milam assesses sex offenders, but she does not provide treatment. She estimated she had evaluated approximately two hundred sex offenders. In her twenty year career as a therapist, she has also assessed children who have been sexually, physically, and emotionally abused. At this point in the witness's testimony, the trial judge asked Appellant's attorney to state the purpose for which he was calling Dr. Milam to testify at the guilt-innocence phase of trial. Counsel responded that Dr. Milam would testify as an expert about how children react following outcry. The trial judge then asked Dr. Milam to explain her experience in that area. Dr. Milam stated her experience was through assessment, but she added: "Very honestly, Your Honor, I have had a lot more experience with perpetrators than with the victims." She considered herself a "semi-expert" in this area because she had tested 45-50 children, compared with approximately two hundred perpetrators. She evaluated the children to determine what services they needed based on their level of trauma. She does not evaluate whether or not they are victims or whether or not they are telling the truth. In her opinion, no neuropsychologist can say whether a child has been sexually abused--they can only determine the child's level or degree of trauma. Determining the characteristics of sexually abused children is a legitimate area of study within the field of psychology. Despite her earlier references to herself as a semi-expert in this area, Dr. Milam affirmatively testified that she is an expert in this area through study and experience. Appellant's attorney also offered Dr. Milam as an expert on the effect of alcohol "from the neuropsychological standpoint" and the characteristics and profile of a sexual predator. With regard to the latter area, Dr. Milam explained that there was a significant amount of research and literature on the subject and she received additional in-service training every year through the sex offense treatment provider board. Most of this research concerns which offenders can be released from prison and which are a continuing threat to society. In her opinion, whether someone is or is not a sexual predator is not a psychological construct but is a legal construct--in other words, it is left to the judge and the jury. However, she was also familiar with numerous studies regarding the characteristics more likely to be seen in sexual predators than in other people. Making this evaluation is within the scope of her expertise. The trial court concluded that Dr. Milam was qualified to testify about the mental issues set forth in Appellant's motion but she was not qualified to testify regarding the believability of the child. Appellant clarified that he was offering Dr. Milam as an expert on the characteristics of sexual perpetrators and the characteristics of children who have reported sexual abuse in order to gain family approval. The trial court excluded her testimony at guilt-innocence but ruled that she would be permitted to testify during the punishment phase. Dr. Milam testified during the punishment phase regarding her assessment and evaluation of Appellant. She believed Appellant had suffered a seizure as the result of having been struck in the head by Jacob Bustamantes, and in her opinion, this explained Appellant's behavior at the time he was arrested. In addition to testifying about Appellant's mental and physical limitations resulting from his head injuries and alcoholism, she also testified that he did not have the characteristics of a sexual pedophile. Appellant first complains that the court abused its discretion by excluding Dr. Milam's testimony regarding the possible seizure and resulting confusion suffered by Appellant because it provided an explanation for Appellant's belligerent and threatening behavior at the time of his arrest. Additionally, he argues that she could have testified regarding the effect of alcohol and pain killers on his brain. Appellant did not offer Dr. Milam as an expert on these issues nor did he inform the trial court that he wished to offer her testimony to explain why Appellant behaved the way he did at the time of his arrest. Instead, Appellant's focus in the Daubert-Kelly (2) hearing was on qualifying Dr. Milam to testify as an expert on the characteristics of sexual predators and characteristics of sexual abuse victims following outcry. Appellant next argues that the trial court erred by finding Dr. Milam was not qualified to testify regarding why Peter changed his story. According to Appellant, Peter first described the incident in such a way that it could have been mere tickling but at trial he testified that Appellant had touched him. He asserts that Dr. Milam should have been permitted to testify at guilt-innocence about why Peter's story evolved. At the Daubert-Kelly hearing, Appellant offered Dr. Milam as an expert in evaluating a child sexual abuse victim's level of trauma. She did not testify that she was an expert in explaining why a child victim's story changes or "evolves." Finally, Appellant asserts that Dr. Milam could have educated the jury regarding the dominating and threatening role that Jacob Bustamantes played in the family. Again, Appellant offered no testimony at the expert hearing on Dr. Milam's expertise in this area. Appellant failed to carry his burden of establishing that Dr. Milam was qualified as an expert to testify at the guilt-innocence phase of trial on these issues. Consequently, the trial court did not abuse its discretion by excluding her testimony. Points of Error Three and Four are overruled. BAILIFF'S COMMENT TO COMPLAINANT In his final point of error, Appellant complains that the bailiff made a comment before the jury which constituted a comment on the weight of the evidence in violation of Article 38.05 of the Code of Criminal Procedure and violated Appellant's right to an impartial jury. At the conclusion of Peter Parker's testimony, the trial court instructed the witness that he could step down and told him, "You can leave. Jerry will take you." The bailiff then told Peter, "Give me five, Buddy." Appellant's counsel states that he did not hear the comment and was unaware of it until reading the reporter's record on appeal. A trial judge is not permitted to comment on the weight of the evidence or convey his opinion of the case at any stage of the trial. Tex.Code Crim.Proc.Ann. art. 38.05 (Vernon 1979). An appellant must object during the trial in order to preserve error. Tex.R.App.P. 33.1. Even constitutional rights can be waived by failing to properly object in a timely manner. Saldano v. State, 70 S.W.3d 873, 889 (Tex.Crim.App. 2002). Generally, an objection must be made in order to preserve Article 38.05 errors. See Jasper v. State, 61 S.W.3d 413, 420-21 (Tex.Crim.App. 2001). In Blue v. State, a plurality of the Court of Criminal Appeals held that a defendant is not required to object to a comment by the trial judge which taints the defendant's presumption of innocence or otherwise constitutes fundamental error of constitutional dimension. See Blue v. State, 41 S.W.3d 129, 132 (Tex.Crim.App. 2000)(trial judge's comments informing the venire that defendant was considering entering into plea agreement and that judge would have preferred that defendant plead guilty, were fundamental error of constitutional dimension and required no objection to preserve issue for appeal). A plurality opinion, however, is not binding precedent. See Jasper, 61 S.W.3d at 421. Even if we were bound to follow Blue, we do not view the bailiff's comment as rising to the level of the judge's statements in Blue. Further, Appellant does not cite any authority establishing that such a comment is fundamental error of constitutional dimension and we are aware of none. Therefore, we find that Appellant was required to object to the bailiff's comment in order to preserve error. Because Appellant failed to do so, the error is waived. We overrule Point of Error Five and affirm the judgment of the trial court. April 17, 2008 ANN CRAWFORD McCLURE, Justice Before Chew, C.J., McClure, and Carr, JJ. (Do Not Publish) 1. The complainant is referred to throughout the appellate record by the pseudonym "Peter Parker." 2. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kelly v. State, 824 S.W.2d 568 (Tex.Crim.App. 1992).