                         NUMBER 13-15-00583-CR

                            COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


JESSE SALAZAR AKA JESSIE SALAZAR,                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                     Appellee.


                   On appeal from the 117th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Rodriguez and Benavides
            Memorandum Opinion by Justice Rodriguez
      Appellant Jesse Salazar, a.k.a. Jessie Salazar, was charged with assault of his

then-girlfriend Maria Carrejo.   At trial, the State introduced evidence that Salazar

impeded Carrejo’s normal breathing by choking her and that he had been previously
convicted of assault of another girlfriend.            Salazar pleaded true to enhancement

allegations that he had two prior felony convictions. After a bench trial, the trial court

found Salazar guilty, convicted him of a second-degree felony, and assessed punishment

at fifty years’ confinement as a habitual felony offender. See TEX. PENAL CODE §§ 12.42,

22.01(a)(1), (b-1) (West, Westlaw through 2015 R.S.).

        Salazar raises two issues on appeal. He first contends that he was “not afforded

Due Process under the Morton Act because the State withheld discovery that had been

timely requested”—specifically, that he was denied access to recordings of inculpatory

phone calls between himself and Carrejo. Salazar next contends that he was denied his

right to a fair trial before an impartial and unbiased judge. We affirm.

                                        I.      BACKGROUND

        At trial, the State sought to introduce clips from phone conversations between

Salazar and Carrejo, which were recorded while Salazar was incarcerated awaiting trial.

The State reported that it was unable to locate Carrejo or arrange for her to appear at

trial, and Salazar filed a motion objecting to the call recordings on the basis of the

Confrontation Clause. The State believed that it could nonetheless introduce the calls

under the “forfeiture by wrongdoing” exception to the Confrontation Clause; according to

the State, the recordings featured Salazar threatening Carrejo, telling her that if he was

convicted, he would “find” her.1 See, e.g., Giles v. California, 554 U.S. 353, 360 (2008).

Counsel for Salazar denied that he was in contact with Carrejo or knew where she was.




        Based upon our review of the record, the trial court listened to this recording, and the court’s
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comments during the hearing show that it clearly found the message to have a threatening quality.
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The trial court eventually denied Salazar’s motion concerning the Confrontation Clause

and allowed the State to rely on recordings of the phone conversations.

      However, later that same day, Carrejo appeared at trial and testified.         She

explained that counsel for Salazar had called her that afternoon and said “he needed me

in the courtroom.” She testified that Salazar’s daughter drove her to the courthouse.

      Salazar was then able to confront Carrejo and examine her extensively, and

Carrejo in fact gave testimony that was highly favorable to Salazar. She testified that

anything she allegedly told officers on the evening in question was not true, that she was

drunk that evening, and that she fabricated the incident because she was angry at Salazar

and “wanted to make his life hell.” According to Carrejo, Salazar’s ex-wife had been

causing problems for Carrejo and had regularly visited Salazar in jail, upsetting Carrejo

and inflaming her relationship with Salazar. As to Salazar’s comment during a call that

if anything happened to him at trial, he would come find her, she explained that this was

not a threat; it meant Salazar would always seek her out, even if convicted, because she

and Salazar loved one another. When the State offered another jail phone call in which

Carrejo told Salazar “you shouldn’t have choked me in front of everyone,” she testified

that this too was a lie based on anger.

      Furthermore, Carrejo disputed the testimony of investigating officers. The officers

testified that they had responded to multiple calls from third parties regarding a man

assaulting a woman inside a nightclub and, later, a man chasing a woman near a

convenience store. The investigating officers variously reported that they had observed

Salazar chasing Carrejo, had found Carrejo “visibly shaken” and crying, had observed

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red marks on Carrejo’s neck, arms, hands, and chest, and had seen fresh blood on her

mouth. Officers took photographs of the marks, which were offered at trial. According

to the officers, Carrejo was difficult to understand through her crying, but related that she

had been choked by Carrejo and was in pain. The officer concluded, based on their

experience investigating many confirmed cases of family violence, that these marks were

most consistent with assault. By contrast, at trial, Carrejo testified that she had received

these marks and injuries from a sexual encounter with an ex-girlfriend on the same night,

and the reason she had been running barefoot near a convenience store at 2:00 AM was

to find a payphone and to use the restroom at the store.

              II.    ALLEGED VIOLATION OF MORTON ACT AND DUE PROCESS

       By his first issue on appeal, Salazar abandons his Confrontation Clause

arguments. Instead, Salazar complains that the State wrongfully failed to provide him

with the jail call recordings despite his timely request, and the State thereby violated the

Morton Act and, by extension, the Due Process Clause. See TEX. CRIM. PROC. CODE

ANN. art. 39.14 (West, Westlaw through 2015 R.S.); see also Brady v. Maryland, 373 U.S.

83, 87 (1963); Ex Parte Miles, 359 S.W.3d 647, 665 (Tex. Crim. App. 2012) (orig.

proceeding). However, Salazar did not raise this argument before the trial court, and

prior to trial, counsel for Salazar acknowledged that he had previously heard the call

recordings and was familiar with their content.        Salazar has waived this issue for

purposes of his appeal. See TEX. R. APP. P. 47.1; Pena v. State, 285 SW3d 459, 464

(Tex. Crim. App. 2009) (“Whether a party’s particular complaint is preserved depends on

whether the complaint on appeal comports with the complaint made at trial.”); see also

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Yates v. State, 941 S.W.2d 357, 364 (Tex. App.—Waco 1997, pet. ref’d) (discussing

waiver of Brady violations for untimely disclosure of evidence). We overrule Salazar’s

first issue.

                       III.   ALLEGED PARTIALITY OF TRIAL COURT

       By his second issue, Salazar contends that he was deprived of his Due Process

rights to a fair trial before an impartial judge, citing Brown v. Vance, 637 F.2d. 272, 281

(5th Cir. 1981) and Bray v. Gramely, 520 U.S. 899, 904–05 (1927). As we understand

Salazar’s argument, the trial court’s bias is shown by two aspects of this case: that the

trial court did not believe Carrejo’s recantation and her testimony that the assault never

occurred, and that the court assessed a high sentence—fifty years—as punishment.

That is, Salazar does not appear to challenge the evidence as insufficient or challenge

the sentence as excessive, per se; instead, he challenges the trial court’s neutrality as it

is reflected by these problems.

A.     Applicable Law

       This Court has held, in a different context, that a defendant has an absolute right

to an impartial judge. Hernandez v. State, 268 S.W.3d 176, 184 (Tex. App.—Corpus

Christi 2008, no pet.); see Fears v. State, 479 S.W.3d 315, 339 (Tex. App.—Corpus

Christi 2015, pet. ref’d). Bias by an adjudicator is not lightly established. Celis v. State,

354 S.W.3d 7, 24 (Tex. App.—Corpus Christi 2011), aff’d, 416 S.W.3d 419 (Tex. Crim.

App. 2013). Absent a clear showing of bias, we presume that the trial court is impartial.

Tapia v. State, 462 S.W.3d 29, 44 (Tex. Crim. App. 2015); Brumit v. State, 206 S.W.3d

639, 645 (Tex. Crim. App. 2006).

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      It is well established that in a sufficiency review, the factfinder is the exclusive

judge of the weight and credibility of the evidence. Wise v. State, 364 SW3d 900, 903

(Tex. Crim. App. 2012). Unless the available record clearly reveals a different result is

appropriate, an appellate court must defer to the factfinder’s determination concerning

what weight to give contradictory testimonial evidence because resolution often turns on

an evaluation of credibility and demeanor. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim.

App. 2000) (en banc); see Watson v. State, 204 S.W.3d 404, 443 (Tex. Crim. App. 2006).

A factfinder is duly entitled to disbelieve a witness’s recantation of a prior statement.

Saldana v. State, 287 S.W.3d 43, 60 (Tex. App.—Corpus Christi 2008, pet. ref’d).

      As to Salazar’s allegations concerning excessive sentencing, a punishment which

falls within the legislatively prescribed range and that is based upon the trial court’s

informed normative judgment is unassailable on appeal, subject to a limited and rare

exception for Eighth Amendment gross-disproportionality review. Barrow v. State, 207

S.W.3d 377, 381 (Tex. Crim. App. 2006). The Texas Court of Criminal Appeals “has

traditionally held that punishment assessed within the statutory limits, including

punishment enhanced pursuant to a habitual-offender statute, is not excessive, cruel, or

unusual.” State v. Simpson, 488 S.W.3d 318, 323 (Tex. Crim. App. 2016). Under penal

code section 22.01(a)(1), a person commits assault if the person intentionally causes

bodily injury to another. TEX. PEN. CODE ANN. § 22.01(a)(1). Such an assault is a felony

of the second degree if:

      (1) the offense is committed against a person whose relationship to or
          association with the defendant is described by Section 71.0021(b),
          71.003, or 71.005, Family Code;

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       (2) it is shown on the trial of the offense that the defendant has been
           previously convicted of an offense under this chapter, Chapter 19, or
           Section 20.03, 20.04, or 21.11 against a person whose relationship to
           or association with the defendant is described by Section 71.0021(b),
           71.003, or 71.005, Family Code; and

       (3) the offense is committed by intentionally, knowingly, or recklessly
           impeding the normal breathing or circulation of the blood of the person
           by applying pressure to the person’s throat or neck or by blocking the
           person’s nose or mouth.

Id. § 22.01(b-1). The habitual felony offender statute provides as follows:

       Except as provided by Subsection (c)(2) or (c)(4), if it is shown on the trial
       of a felony offense other than a state jail felony punishable under Section
       12.35(a) that the defendant has previously been finally convicted of two
       felony offenses, and the second previous felony conviction is for an offense
       that occurred subsequent to the first previous conviction having become
       final, on conviction the defendant shall be punished by imprisonment in the
       Texas Department of Criminal Justice for life, or for any term of not more
       than 99 years or less than 25 years.

Id. § 12.42.

B.     Analysis

       Here, Salazar argues that the trial court showed its bias by not giving conclusive

weight to Carrejo’s recantation. However, the trial court had heard a recorded call which

could have reasonably been interpreted as a threat of retribution to Carrejo. The court

also received an authenticated copy of Salazar’s previous conviction for family violence

assault, as well as testimony that Salazar was a professed member of the Texas

Syndicate, a Texas prison gang. The trial court had been led to believe that neither side

knew Carrejo’s whereabouts, only to have counsel for Salazar produce Carrejo after his

Confrontation Clause motion was denied. Finally, Carrejo’s testimony contradicted a

great deal of evidence which was collected on the night in question. As the State points


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out, unfortunately, recantation is not an uncommon phenomenon in this type of case.

See, e.g., O’Laughlin v. O’Brien, 577 F.3d 1, 4 (1st Cir. 2009) (quoting T. Linger,

Prosecuting Batterers After Crawford, 91 VA. L. REV. 747, 768 (2005)) (“Recent evidence

suggests that 80 to 85 percent of battered women will recant at some point.”). The trial

court seems to have drawn perfectly rational inferences and credibility determinations

from this conflicting evidence, see Johnson, 23 S.W.3d at 8, and no bias is evident in the

trial court’s decision to discount Carrejo’s recantation and related testimony.       See

Saldana, 287 S.W.3d at 60; see also Celis, 354 S.W.3d at 24.

      As to Salazar’s attempt to show bias by way of excessive sentencing, the trial court

assessed a fifty-year sentence that fell squarely within the legislatively prescribed range

of possible sentences: life, or “any term of not more than 99 years or less than 25 years.”

See TEX. PEN. CODE ANN. §§ 12.42, 22.01(a)(1), (b-1); Barrow, 207 S.W.3d at 381.

Indeed, Salazar’s sentence was below the median of these possible sentences. Salazar

does not challenge this sentence as grossly disproportionate, and he does not bring any

other facts to our attention which would potentially suggest that the sentence was an

indication of bias. See Simpson, 488 S.W.3d at 323.

      In sum, Salazar does not properly challenge the sufficiency of the evidence or the

inferences that it reasonably supports, and he does not challenge the excessiveness of

the sentence.    Instead, he questions the trial court’s integrity for drawing these

inferences in a natural and logical progression towards this sentence. Salazar has made

no showing of bias, let alone the clear showing required under our constitutional

jurisprudence. See Tapia, 462 S.W.3d at 44. We therefore presume that the trial court

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was impartial. See id. We overrule Salazar’s second issue.

                                   IV.     CONCLUSION

       We affirm the judgment of the trial court.

                                                         NELDA V. RODRIGUEZ
                                                         Justice

Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
20th day of October, 2016.




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