                                                                                  February 11, 2015
                                       No. PD-0036-15
_________________________________________________________________________________________________

                                            IN THE

                                    COURT OF CRIMINAL

                                           APPEALS

                                          OF TEXAS

_________________________________________________________________________________________________

                                  ENRIQUE GONZALEZ, JR.,
                                                       Petitioner
                                               V.
                                    THE STATE OF TEXAS,
                                                       Respondent
_________________________________________________________________________________________________
                              Petition in Cause No. 12-CRD-36
                          From the 229th Judicial District Court of
                                  Duval County, Texas and

                                The Court of Appeals for the
                         Fourth District of Texas 04-13-00708-CR
_________________________________________________________________________________________________

                        PETITION FOR DISCRETIONARY REVIEW

_________________________________________________________________________________________________
                                                 Charles L. Barrera
                                                 State Bar No. 01805500
                                                 700 E. Second Street
                                                 Alice, TX 78332
                                                 361-664-2153
                                                 EMAIL: barreralawfirm@aol.com

                                                Marisol Carvajal-Garcia
                                                State Bar No. 24065014
                                                1600 E. Main, Ste. 227
                                                Alice, TX 78332
                                                361-668-4989
                                                EMAIL: marisolcarvajal@hotmail.com

                                                        ATTORNEYS FOR PETITIONER
ORAL ARGUMENT REQUESTED
                   TABLE OF CONTENTS

INDEX OF AUTHORITIES………………………..……………………………………………………………iii

STATEMENT REGARDING ORAL ARGUMENT…………..……………………………………………2

STATEMENT OF THE CASE………………………………...…………………………………………………2

STATEMENT OF PROCEDURAL HISTORY…………...…………………………………………………2

REASONS FOR REVIEW………………..………………………………………………………………………3

STATEMENT OF THE FACTS…………………………………………………………………………………4

GROUND FOR REVIEW ONE………………………………………………………………………………….4

GROUND FOR REVIEW TWO…………………………………………………………………………………7

SUMMARY…………………………..……………………………………………………………………………….9

PRAYER FOR RELIEF…………………….……………………………………………………………………10




                            ii
                         INDEX OF AUTHORITIES

CASE LAW:

Blue v. State,
        41 S.W.3d 129, (Tex. Crim. App. 2000)…………………………………...……………3, 4, 6
Green v. State,
        912 S.W.2d 189 (Tex. Crim. App. 1995)………………………………………………………8
Rabago v. State,
        75 S.W.3d 561 (Tex. App. – San Antonio, 2002)………………………………..…………6
Rickels v. State,
        108 SW3d 900 (Tex. Crim. App. 2003)………………………………………………..………9
Sharpe v. State,
        648 S.W.2d 705, 706 (Tex. Crim. App. 1983)……………………………………………..3
Webb v. State
        409 U.S. 95 (1972)…………………………………………………………………………………6, 7
Williamson v. State,
        771 S.W.2d 601 (Tex. App. – Dallas, 1989)…………………………………………….……8
Word v. State,
        206 S.W.3d 646 (Tex. Crim. App. 2006)……………………………………….………...……8

STATUTES:

Tex. Code Crim. Proc. Art. 36.27……………………………………………………………………………7

Tex. Pen. Code Section 21.11………………………………………………………………………………..2

RULES:

Tex. R. Crim. Evid. Rule 103(d)…………………………………………………………………………4, 6

CONSTITUTIONAL AMENDMENTS:

U. S. Const. Am. 6…………………………………………………………………………………………………9




                                   iii
                                            No. PD-0036-15
     _________________________________________________________________________________________________

                                                 IN THE

                                         COURT OF CRIMINAL

                                                APPEALS

                                                OF TEXAS

     _________________________________________________________________________________________________

                                       ENRIQUE GONZALEZ, JR.,
                                                            Petitioner
                                                     V.
                                         THE STATE OF TEXAS,
                                                            Respondent
_________________________________________________________________________________________________

                                  Petition in Cause No. 12-CRD-36
                               From the 229th Judicial District Court of
                                      Duval County, Texas and

                                     The Court of Appeals for the
                              Fourth District of Texas 04-13-00708-CR
     _________________________________________________________________________________________________

                              PETITION FOR DISCRETIONARY REVIEW

     _________________________________________________________________________________________________

TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS OF TEXAS:

        ENRIQUE GONZALEZ, JR. petitions the Court to review the judgment affirming his

conviction for two counts of Indecency with a child in Cause No. 12-CRD-36.




                                                     1
                        STATEMENT REGARDING ORAL ARGUMENT

       In the event this petition is granted, the Petitioner requests oral argument. Argument

would assist the Court because resolution of the grounds for review depends upon a detailed

exploration of the facts of these cases. Further, oral argument would provide this Court with

an opportunity to question the parties regarding their positions.

                                  STATEMENT OF THE CASE

       Appellant was charged by indictment with Indecency with a child in violation of TEX.

PENAL CODE Sec. 21.11. The indictment alleged that Appellant, on or about June 22, 2011, in

Duval County, Texas did then, with the intent to arouse or gratify his sexual desire,

intentionally or knowingly engage in sexual contact with a child younger than 17 years of age,

by touching her genitals and breast.

       It was further alleged that Appellant pled guilty to the offense of Aggravated Sexual

Assault on July 9, 1996. In that case, Appellant received a sentence of five (5) years

probation. (C.R. Vol. 1, Pages 90-91). A punishment of life imprisonment was assessed by the

Court because enhancing circumstances were found to be true.

                                   PROCEDURAL HISTORY

       The judgment of Petitioner’s conviction was entered on July 1, 2013. Petitioner’s

notice of appeal was timely filed. On December 10, 2014, the Fourth District Court of Appeals

issued an unpublished opinion by Chief Justice Catherine Stone affirming Petitioner’s

conviction. A motion for rehearing was not filed in this Cause.




                                               2
                                    GROUNDS FOR REVIEW

                                 GROUND FOR REVIEW NO. 1

         THE APPELLATE COURT ERRED IN FINDING THAT THE TRIAL COURT’S

         ADMONISHMENTS OF DEFENSE WITNESSES WERE NOT PROPERLY PRESERVED

         BECAUSE NO OBJECTION WAS MADE AT TRIAL.

                                 GROUND FOR REVIEW NO. 2

         THE APPELLATE COURT ERRED BY FAILING TO COMPLY WITH THE MANDATORY

         PROVISIONS OF ARTICLE 36.27 OF THE TEXAS CODE OF CRIMINAL PROCEDURE

         REGARDING A NOTE FROM THE JURY STATING THAT THE JURY WAS

         DEADLOCKED BECAUSE OF APPELLANT’S FAILURE TO OBJECT.

                                        REASONS FOR REVIEW

         The Fourth Court of Appeals affirmed the conviction in this case on the grounds that

Appellant did not preserve error because of his failure to object at the time of trial. The

Fourth Court of Appeals did not discharge its duty to review and apply the law of Blue v. State,

41 S.W.3d 129 (Tex. Crim. App. 2000) and Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim.

App. 1983) to a fair consideration of all the evidence and the entirety of the comments made

by the trial court.

         Likewise, the Fourth Court of Appeals did not fairly evaluate nor comply with the

mandatory provisions of Article 36.27 of the Texas Code of Criminal Procedure regarding a

jury note citing the extent of the division of the juror’s vote and stating that the jury was

deadlocked and further that this error was not preserved because no objection was made at

trial.




                                                 3
                                   STATEMENT OF FACTS

       On June 22, 2011, Gonzalez visited the Rodriguez household for the purpose of picking

up a canine training collar that he ordered from the internet. Gonzalez and the complaining

witnesses’ grandfather trained their hunting dogs to search for deer and hogs using the

training collar. Complaining witness testified that Gonzalez entered the house and gathered

the training collar and on his way out stopped in her room. Complaining witness also claims

Gonzalez played with her small dog that was sitting on her lap and while doing so allegedly

touched her breast and made contact with her genitals.

       Gonzalez was arrest by the San Diego Police Department and was subjected to an

interrogation during which he consistently denied involvement with the complaining witness.

                             GROUND FOR REVIEW NO. 1, RESTATED

       THE APPELLATE COURT ERRED IN FINDING THAT THE TRIAL COURT’S

       ADMONISHMENTS OF DEFENSE WITNESSES WERE NOT PROPERLY PRESERVED

       BECAUSE NO OBJECTION WAS MADE AT TRIAL.

       In Blue v. State, supra, this Court held that pursuant to Texas Rules of Evidence 103(d),

“we are authorized to take notice of fundamental errors affecting substantial rights although

they were not brought to the attention of the court.”

The Appellate Court, in its unpublished opinion, stated that the “trial court admonished

Gonzalez’ wife, who testified as a defense witness because she hesitated before answering

very simple questions that would not be complicated for an average person to answer.” Also,

the record shows that the following conversation transpired while the jury was present and

could hear the conversation amongst the Court, Defense Counsel and this Witness:

The Court: I do not want her to perjure herself. (8 R.R. 30/12).
Ms. Garcia: Uh-huh. (8 R.R. 30/13).
The Court: So if you want to take her aside and tell her she needs to be honest. (8 R.R. 30/14-
15).
Ms. Garcia: Yes. (8 R.R. 30/16).
                                               4
The Court: Because there’s a record here and they will come after her for perjury, I’m sure. (8
R.R. 30/17-18).
Ms. Garcia: Yes. (8 R.R. 30/19).
The Court: So please…I just don’t want her to go there thinking she needs to protect him
thinking that everything is fine. (8 R.R. 30/20-22).
Ms. Garcia: Okay. (8 R.R. 30/23).
The Court: Because I don’t like that she’s hedging here. (8 R.R. 30/24-25).
Ms. Garcia: Do you want me to take her in the jury room? (8 R.R. 31/1-2).
The Court: Just over here to the side. Just take her to the side. Just take her to the side. Just
be honest. (8 R.R. 31/3-5).
Ms. Garcia: Yes, ma’am. (8 R.R. 31/6).
(At this point in time, the witness and defense attorneys left the courtroom, but the court and
jurors remained). (8 R.R. 31/7-9).
Outside of the presence of defense counsel and their witness and in front of the jury, the court
made the following comment:
The Court: Okay, someone needs to be there so that that’s the only thing that’s discussed. (A
deputy left the courtroom and went with the witness and the defense attorneys. When they
returned the trial resumed.) 8 R.R. 31/10-15.
The Court: I do have to remind you, ma’am that you are under oath. (8 R.R. 31/16-17).
The Witness: Okay. (8 R.R. 31/18).
The Court: And you are subject to the same penalties of perjury as everybody else that take
the stand. Okay? (8 R.R. 31/19-21).
The Witness: Okay. (8 R.R. 31/22).

       After the witness completed her testimony, the Defense called David Alvarado to the

stand. The following communications occurred between the court and Mr. Alvarado.

The Court: Call your next witness. (8 R.R. 39/11).
Ms. Garcia: David Alvarado. (8 R.R. 39/13).
The Court: Mr. Alvarado. (8 R.R. 39/13).
The Court: Mr. Alvarado stand up here. Is he in handcuffs (speaking to bailiff on the other
side of the courtroom)? (8 R.R. 39/16-17).
Mr. Alvarado: No. (8 R.R. 39/18).
The Court: Okay, I didn’t know why your hands were behind you like that. Okay raise your
right-hand. Raise your right hand. Do you swear to tell the truth, the whole truth, and
nothing but the truth, so help you God?
The Witness: Yes, ma’am. (8 R.R. 39/23).
The Court: State your name for the record. (8 R.R. 39/24).
The Witness: David Alvarado, Jr. (8 R.R. 39/25).
The Court: Mr. Alvarado, I do need to tell you as well as all the other witnesses that your
testimony is subject to perjury so you are taking an oath to tell the truth so please do. Have a
seat. Okay. You are going to have to talk into the mic. (8 R.R. 40/1-5).

       In this case, the trial court’s comments rise to the level of creating fundamental error

that affects substantial rights although they were not brought to the attention of the trial

court via objection. The majority opinion of the appellate court completely fails to address
                                                5
this issue in Blue, supra. In Blue, “a plurality of the Texas Court of Criminal Appeals held that

the comments of the trial judge, which tainted appellant’s presumption of innocence in front

of the venire, were fundamental error of constitutional dimension and required no objection.”

Rabago v. State, 75 S.W.3d 561 (Tex. App. – San Antonio, 2002).

       Pursuant to Rule 103(d) this Court, even though there was no objection, is authorized

to review the trial judge’s statements because they constituted fundamental error of

constitutional magnitude. In this case, the trial court attempted to rationalize her

admonishments to Defense witnesses Briones and Alvarado by stating that she did admonish

the victim when she was on the stand. However, the admonishments to the victim were kind

and gentle compared to the harsh and accusatory admonishments of Appellant’s witnesses.

(7 R.R. 22/9-25), (7 R.R. 23/1-3), (7 R.R. 101/3-6), (7 R.R. 106/18-20).

       Additionally, the United States Supreme Court in Webb v. State held that once a

witness swears to give truthful answers, there are no requirements to warn him not to

commit perjury of conversely to direct him to tell the truth. It would render the sanctity of

the oath quite meaningless to require admonition to adhere to it. Webb v. State, 409 U.S. 95

(1972).

                          GROUND FOR REVIEW NO. 2, RESTATED

       THE APPELLATE COURT ERRED BY FAILING TO COMPLY WITH THE MANDATORY

       PROVISIONS OF ARTICLE 36.27 OF THE TEXAS CODE OF CRIMINAL PROCEDURE

       REGARDING A NOTE FROM THE JURY STATING THAT THE JURY WAS

       DEADLOCKED BECAUSE OF APPELLANT’S FAILURE TO OBJECT.

       The Appellate Court did not address the applicability of Article 36.27 to the facts of the

case now before the Court because it peremptorily ruled that Gonzalez failed to preserve

error because he did not object.       Counsel for Gonzalez was never presented with an

opportunity to object because the jury note declaring an 8 to 4 deadlock was never presented
                                                6
to counsel. To prove this point, Gonzalez would show that at 7:45p.m. the trial court

responded to a jury note asking how long Gonzalez was allegedly in the victim’s room. (8 R.R.

206/1-25, 207/16). The note, along with the testimony, was returned to the jury by the

bailiff. The jury resumed deliberations and later the proceedings resumed. (8 R.R. 207/12-

16). Unlike the communication that was transcribed between the trial court, counsel for the

State and counsel for Gonzalez (8 R.R. 202/4 – 8 R.R. 207/15). The record in this case is

completely silent as to what occurred between 7:45 p.m. and 9:50 p.m. This can only mean

that the trial judge filed the note with the clerk’s office and immediately went back on the

record and started instructing the jury via the Allen Charge. Because counsel for Gonzalez

had no idea about the existence of the jury note indicating an 8 to 4 deadlock, Appellant had

no opportunity to file an objection.

       It is incumbent upon a trial court to follow what is on its face the simple clear and

direct mandate of the statute to require the written instructions or answer to a jury’s

communication to be read in open court in the presence of the Defendant or his counsel

unless expressly waived by the Defendant, and to require the court reporter to prescribe such

proceedings so that they may become part of the record. Williamson v. State, 771 S.W.2d 601

(Tex. App. – Dallas, 1989). The Appellate Court held that the record presented contained no

reference to the procedures the trial court followed in responding to the jury’s note that they

were deadlocked. It further stated that the record is also silent on when Gonzalez or the State

of Texas became aware that the trial court received the communication from the jury. The

reviewing court went on to say that when the record is silent, a reviewing court must

presume that the trial court’s response to a jury note was in open court and in the Appellant’s

presence, giving him the opportunity to object, citing Green v. State, 912 S.W.2d 189, 192 (Tex.

Crim. App. 1995). It is the “appealing party’s burden to present a record showing properly

preserved reversible error.” Word v. State, 206 S.W.3d 646, 651-52 (Tex. Crim. App. 2006).
                                                7
The present case is distinguishable from the aforementioned cases because counsel for

Gonzalez was never presented with a note that the jury was deadlocked.

       The Appellate Court erred in its opinion that Appellant had an opportunity to object to

the trial Court’s failure to present the note to them prior to instructing the jury. In

Williamson, the Court noted that there was nothing transcribed by the Court Reporter in the

record about a jury communication and the Court’s response. In the case now before this

Court, the record clearly states the following: “I’ve been advised, uh, by the bailiff that you all

are stating you are deadlocked.” (8 RR 207/19-22). The Court makes no reference to a

written note that had been delivered to her specifically stating the jurors were deadlocked at

8 to 4. In fact, the record is abundantly clear that the communication by the Bailiff stated that

the jury was deadlocked. Appellant cannot object to a note that was never disclosed to

counsel.

       In Rickels, this Court considered a prior opinion holding that a Defendant must

complain at trial to the conditions he finds objectionable. Rickels v. State, 108 SW3d 900 (Tex.

Crim. App. 2003). By failing to object to the terms and conditions of probation at trial, a

Defendant affirmatively waives any complaints he may have had. The court went on to say

that the court modified the terms of Rickels probation without a hearing, and Rickels had no

opportunity to object. (Emphasis ours).

       We can make a favorable comparison to the case now before this court. Gonzalez had

no opportunity to object to the court’s response to the jury’s 8 to 4 note. The trial court never

disclosed the existence of this note, thus depriving him of his constitutional right to Counsel.

(U. S. Const. Am. 6).




                                                 8
                                           SUMMARY

       The justices of the Court of Appeals based their decision in this case on the grounds

that Appellant did not preserve error because of his failure to object at the time of trial.

Likewise, the Fourth Court of Appeals did not fairly evaluate nor comply with the mandatory

provisions of Article 36.27 of the Texas Code of Criminal Procedure regarding a jury note

citing the extent of the division of the juror’s vote and stating that the jury was deadlocked

and further that this error was not preserved because no objection was made at trial.

                                      PRAYER FOR RELIEF

       For the reasons stated, the Petitioner was denied a fair trial in Cause No. 12-CRD-36.

Therefore, Appellant prays that this Court grand his petition for discretionary review and

upon reviewing the judgment entered below, reverse this Cause and dismiss the prosecution

or remand it for a new trial.




                                                     Respectfully submitted,



                                                     /s/ Charles L. Barrera

                                                     CHARLES L. BARRERA
                                                     700 East Second Street
                                                     Alice, TX 78332
                                                     (361) 664-2153
                                                     Attorney for Appellant
                                                     State Bar No. 01805500

                                                     /s/ Marisol Carvajal-Garcia
                                                     MARISOL CARVAJAL-GARCIA
                                                     1600 E. Main, Ste. 227
                                                     Alice, TX 78332
                                                     (361) 668-4989
                                                     Attorney for Appellant
                                                     State Bar No. 24065014

                                                 9
                                 CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the foregoing Petition for Discretionary

Review has been served, via email at duval229da@yahoo.com to the Duval District Attorney’s

on the 9th day of February, 2015.

                                                  /s/ Charles L. Barrera

                                                  ____________________________________

                                                  CHARLES L. BARRERA



                                                  /s/ Marisol Carvajal-Garcia

                                                  ________________________________________

                                                  MARISOL CARVAJAL-GARCIA



                              CERTIFICATE OF COMPLIANCE

      I hereby certify that this Petition conforms to the requirements of TRAP 9, and

consists of words 2885 per TRAP 9.4(i)(2)(D).



                                                  /s/ Marisol Carvajal-Garcia

                                                  ________________________________________

                                                  MARISOL CARVAJAL-GARCIA




                                             10
                               Fourth Court of Appeals
                                     San Antonio, Texas

                                 MEMORANDUM OPINION
                                         No. 04-13-00708-CR

                                      Enrique GONZALEZ, Jr.,
                                              Appellant

                                                   v.

                                        The STATE of Texas,
                                              Appellee

                     From the 229th Judicial District Court, Duval County, Texas
                                    Trial Court No. 12-CRD-36
                            Honorable Ana Lisa Garza, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: December 10, 2014

AFFIRMED

           Enrique Gonzalez, Jr. was convicted by a jury of two counts of indecency with a child. On

appeal, Gonzalez raises four issues asserting the trial court erred by: (1) allowing his motion for

new trial alleging juror misconduct to be overruled by operation of law; (2) commenting on the

weight of the evidence; (3) failing to submit a jury note to defense counsel before instructing the

                                                   11
jury regarding the note; and (4) using a probationary sentence to enhance punishment in violation

of the prohibition against ex post facto laws.




                                                 12
                                                                                       04-13-00708-CR


                                           BACKGROUND

       Gonzalez pled not guilty to two counts of indecency with a child. A jury found him guilty

of engaging in sexual contact with C.R., a child younger than 17 years of age, by touching her

genitals and breast. Gonzalez’s sentence was enhanced to life in prison based on a 1996 conviction

of aggravated sexual assault of a child. Gonzalez appeals.

                                     MOTION FOR NEW TRIAL

       In his first issue, Gonzalez contends the trial court erred in allowing his motion for new

trial to be overruled by operation of law. In his motion for new trial, Gonzalez asserted that jury

misconduct during deliberations deprived him of a fair and impartial trial.

A.     Standard of Review

       “It is well established that granting or denying a motion for new trial lies within the trial

court’s discretion.” Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). Therefore, the

standard of review for a trial court’s ruling on a motion for new trial is abuse of discretion. State

v. Gonzalez, 855 S.W.2d 692, 696 (Tex. Crim. App. 1993). An appellate court will reverse a trial

court’s ruling only when the decision to grant or deny the new trial was so clearly wrong it was

outside the zone within which reasonable persons might agree. Id. at 695 n. 4. In the absence of

contrary evidence, it is presumed that the trial court properly exercised its discretion. Beard v.

State, 385 S.W.2d 855, 856 (Tex. Crim. App. 1965).

       When jurors testify as to jury misconduct, the trial court is the sole judge of the jurors’

credibility. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001), Fairley v. State, 90

S.W.3d 903, 906 (Tex. App.—San Antonio 2002, no pet.). “Where there is conflicting evidence

on an issue of fact as to jury misconduct, the trial judge determines the issue, and there is no abuse

of discretion in overruling the motion for new trial.” Salazar, 38 S.W.3d at 148; Fairley, 90

S.W.3d at 906.
                                                 -2-
                                                                                      04-13-00708-CR


B.     Conflicting Evidence

        Gonzalez supported his motion for new trial with two affidavits from jurors who stated that

an unnamed juror made a statement about Gonzalez being listed on the internet as a registered sex

 offender. At the hearing on the motion for new trial, one juror, Meliza Kipple, testified on the

 stand and in her affidavit that it was a male juror who made the statement. The other affidavit

offered by Gonzalez was from a male juror who stated it was a female juror who made the

statement. The State offered five affidavits from jurors who stated they did not hear this statement.

       Gonzalez objected to the admission of the State’s affidavits based on their timeliness.

Gonzalez stated he did not receive copies of the affidavits until the day of the hearing. The State

countered Gonzalez’s objection by showing it just received the affidavits. The record shows that

two of the State’s affidavits were dated August 15, 2013 which was five days prior to the hearing,

and three of the State’s affidavits were dated August 19, 2013 which was only one day prior to the

hearing. The trial court conditionally admitted the affidavits into evidence until it had time to

review the cases presented by Gonzalez, and stated it would withdraw them as exhibits if needed.

The State then requested that the affidavits be read into the record. The trial court allowed the

State to read the affidavits into the record with no objection from Gonzalez. The record does not

contain any order by the trial court withdrawing the affidavits.

       Because the trial court conditionally admitted the State’s affidavits and the record does not

establish that the trial court ever withdrew them from evidence, the record contains conflicting

evidence about whether a statement was made that Gonzalez was a registered sex offender.

Because the record contains conflicting evidence, the trial court did not abuse its discretion in

allowing the motion for new trial to be overruled by operation of law. Salazar, 38 S.W.3d at 148;

Fairley, 90 S.W.3d at 906.



                                                -3-
                                                                                     04-13-00708-CR


                          COMMENTING ON THE WEIGHT OF EVIDENCE

       In Gonzalez’s second issue, he contends the trial court commented on the weight of the

evidence, thus depriving him of due process under the Fourteenth Amendment. Specifically,

Gonzalez asserts the trial court’s comments to the State’s witnesses were more respectable and

accommodating than the comments to his witnesses. He maintains that all State’s witnesses were

offered water, tissue, and help by the trial court and were given common courtesies such as being

thanked for their testimony. Gonzalez contends that his witnesses were never offered any of these

courtesies, but rather admonished before the jury about perjuring themselves. Gonzalez maintains

that the trial court admonished each of his witnesses about being under oath and “subject to the

penalties of perjury as everybody else that takes the stand,” while saying nothing about being under

oath or the penalties of perjury to the State’s witnesses.

       The State contends Gonzalez did not preserve error since he did not timely object to the

trial court’s comments and actions. Because Gonzalez did not timely object, the State contends

the trial court was not afforded an opportunity to correct any possible error.

A.     Preservation of Error

       “The purpose of a timely objection is to give the trial judge the opportunity to cure error.”

Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991); In re J.G., 195 S.W.3d 161, 177

(Tex. App.—San Antonio 2006, no pet.). In order for an objection to be considered timely, it must

be made as soon as the grounds for the objection become apparent, i.e., as soon as the defense

knows or should know that an error has occurred. Hollins, 805 S.W.2d at 476. A timely objection

promotes the prevention and correction of errors. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim.

App. 2004). “Because an objection informs the judge and opposing counsel of the potential for

error, an objection conserves judicial resources by prompting the prevention of foreseeable,

harmful events.” Id. In order for an appellant to present a complaint for appellate review, “the
                                                 -4-
                                                                                      04-13-00708-CR


record must show that the complaint was made to the trial court in a timely request, objection or

motion.” TEX. R. APP. P. 33.1(a)(1).

       Here, Gonzalez did not object when the trial court made the admonishments about which

he now complains. The record reflects that Gonzalez had ample opportunity to object during both

of his witnesses’ testimony, but failed to do so.

B.     Motion for Mistrial

       Although Gonzalez did not timely object at trial, before the defense rested he did file a

motion for mistrial complaining of the trial court’s admonishments given to his witnesses. In his

motion, Gonzalez complained that the trial court inappropriately admonished his witnesses about

telling the truth and the penalties of perjury. He presented case law that discussed how such

admonishments could: (1) diminish the credibility of the defense’s approach to the case; (2) be

calculated to benefit the State or prejudice the Defendant; and (3) imply to the jury the possibility

that the witnesses might commit perjury and therefore it was necessary to warn them not to commit

perjury.

       The trial court responded by stating that it did in fact admonish the victim herself when she

got on the stand. The trial court admonished Gonzalez’s wife, who testified as a defense witness,

because she hesitated before answering very simple questions that would not be complicated for

an average person to answer. As to Gonzalez’s last witness, the trial court stated that the

admonishment was given because the trial court did not want the witness to be untruthful in the

event he was upset with Gonzalez for having him subpoenaed to testify. The trial court denied the

request for mistrial, but instructed the jury that statements made by the trial court with reference

to any of the witnesses were not to be construed by the jury as an indication that the trial court

wanted the jury to either convict or acquit the defendant. The trial court instructed the jury that

they were the judges of the facts and of the witnesses and their credibility.
                                                    -5-
                                                                                      04-13-00708-CR


        “A mistrial is a device used to halt trial proceedings when error is so prejudicial that

expenditure of further time and expense would be wasteful and futile.” Ladd v. State, 3 S.W.3d

547, 567 (Tex. Crim. App. 1999). If an impartial verdict cannot be reached, a trial court may

exercise its discretion to declare a mistrial. Sewell v. State, 696 S.W.2d 559, 560 (Tex. Crim. App.

1983). In most cases, any harm can be cured by an instruction to disregard any improper questions

or comments and a mistrial would not be warranted. Ladd, 3 S.W.3d at 567.

        Here, the trial court denied the mistrial and instructed the jury not to consider any

statements made by the trial court with reference to any of the witnesses. It must be presumed that

the jury followed this instruction in reaching its verdict. Wesbrook v. State, 29 S.W.3d 103, 116

(Tex. Crim. App. 2000). Because the trial court instructed the jury to not consider its comments,

the trial court did not err in overruling the motion for mistrial.

                 FAILING TO PRESENT THE JURY’S NOTE TO DEFENSE COUNSEL

        Gonzalez contends the trial court failed to comply with the mandatory provisions of article

36.27 of the Texas Code of Criminal Procedure regarding a note from the jury stating the jury was

deadlocked. Article 36.27 provides that a trial court shall respond in writing to a deliberating

jury’s communication. TEX. CODE CRIM. PROC. ANN. art. 36.27 (West 2013). Before answering

a jury’s communication the judge “shall use reasonable diligence to secure the presence of the

defendant and his counsel,” and shall submit to defendant and his counsel the jury’s

communication and the trial court’s proposed response. Id. Gonzalez maintains the trial court

failed to present him with the note so that he could offer an adequate response, and failed to submit

to him the court’s proposed response before giving the response to the jury. The State contends

Gonzalez waived any possible error when he did not make appropriate objections on the record.

        The record presented to this court contains no reference to the procedures the trial court

followed in preparing to respond to the jury’s note that they were deadlocked. The record is also
                                                  -6-
                                                                                        04-13-00708-CR


silent on when Gonzalez or the State became aware that the trial court received the communication

from the jury. When the record is silent, a reviewing court must presume the trial court’s response

to a jury note was in open court and in appellant’s presence, giving him the opportunity to object.

Green v. State, 912 S.W.2d 189, 192 (Tex. Crim. App. 1995). It is the “appealing parties’ burden

to present a record showing properly preserved, reversible error.” Word v. State, 206 S.W.3d 646,

651-52 (Tex. Crim. App. 2006) (holding appellant failed to preserve error when the record: was

silent on procedures followed by trial court; contained no reference to trial court’s response to jury

communication; did not reflect any objections by appellant; and failed to reveal when appellant

became aware of jury’s communication).

           Here, the trial court received a note from the jury indicating they were deadlocked, and

went on the record stating “. . . I’ve been advised, uh, by the bailiff that you all are stating you are

deadlocked.” At this point, it is presumed Gonzalez and his attorneys were in the courtroom and

had the opportunity to object to the trial court’s failure to present the note to them prior to

instructing the jury. Green, 912 S.W.2d at 192. We need not employ a presumption, however,

because at oral argument counsel conceded they were present when the trial court responded to the

jury’s note. When the trial court announced in open court that it was aware of the deadlock and

then proceeded to further instruct the jury with an Allen charge,1 Gonzalez failed to take any steps

to notify the court of his concerns. At no point did Gonzalez ask if the jury had submitted a

question, seek clarification about the court’s decision to provide an Allen charge, or lodge any

objection. A timely objection must be made in order to preserve error. Hollins, 805 S.W.2d at

476. Because no objection was made after the statement regarding the note, Gonzalez did not

preserve this issue for this court to review.



1
    Allen v. U.S., 164 U.S. 492 (1896).

                                                  -7-
                                                                                      04-13-00708-CR


                 PROBATIONARY SENTENCE USED TO ENHANCE PUNISHMENT

       In his final issue, Gonzalez contends the trial court violated the prohibition against ex post

facto laws when it allowed a prior felony conviction to be used to enhance punishment. Gonzalez

asserts that because he was given probation for his prior conviction, which he successfully

completed, there is no final conviction to enhance his punishment. Gonzalez also contends the

enhancement statute in effect at the time of his prior conviction required two prior felony

convictions to trigger the automatic life enhancement instead of one, which is all the current

enhancement statute requires.

A.     Probationary Sentence

       Gonzalez argues that his prior conviction should not have been used to enhance his

punishment since it was a probated sentence and not a final conviction. It has long been the general

rule in Texas that a probated sentence is not a final conviction for enhancement purposes unless it

has been revoked. Jordon v. State, 36 S.W.3d 871, 873 (Tex. Crim. App. 2001). However, the

court in Comeaux v. State determined that a “successfully completed and subsequently discharged

‘regular’ community supervision can be used to enhance punishments for later offenses when the

provision permitting enhancement did not exist at the time the ‘regular’ community supervision

was imposed in lieu of incarceration.” 151 S.W.3d 710, 713 (Tex. App.—Beaumont 2004, no

pet.). Furthermore, section 12.42(g)(1) of the Texas Penal Code provides that a defendant has

been “previously convicted” of an offense listed under section 12.42(c)(2)(B), if he either was

adjudged guilty or entered a plea of guilty or nolo contendere in return for a grant of a deferred

adjudication, “regardless of whether the sentence for the offense was ever imposed or whether the

sentence was probated and the defendant was subsequently discharged from community

supervision[.]” TEX. PENAL CODE ANN. § 12.42 (West 2013); see also Ex parte White, 211 S.W.3d

316, 319 (Tex. Crim. App. 2007). Gonzalez’s prior sentence was probated in lieu of incarceration,

                                                -8-
and the prior offense is listed under section 12.42(c)(2)(B) of the current

enhancement statute. Therefore, the prior conviction can be used to enhance his current

conviction.

B.     Ex Post Facto Violation

       A conviction which occurred prior to the enactment of an enhancement statute

that provides for an increased punishment for a subsequent conviction may be used for

enhancement purposes under the statute. Barnes v. State, 70 S.W.3d 294, 302 (Tex.

App.—Fort Worth 2002, pet. ref’d). The use of the prior conviction is not an ex post

facto violation. Id. Both the United States Supreme Court and the Texas Court of

Criminal Appeals have held that enhancement statutes do not violate the prohibition

against ex post facto laws because these statutes penalize the criminal offense being

enhanced rather than the prior offense used for enhancement. McDonald v.

Massachusetts, 180 U.S. 311, 313 (1901); White, 211 S.W.3d at 320. Gonzalez argues

that because the enhancement statute in effect at the time of his first conviction was

amended, the use of the current enhancement statute is an ex post facto violation.

Because the current enhancement statute was used to enhance the punishment of the

current conviction, not the prior conviction, there is no ex post facto violation in this

case. White, 211 S.W.3d at 320.

                                     CONCLUSION

       The trial court’s judgment is affirmed.


                                                 Catherine Stone, Chief Justice

DO NOT PUBLISH



                                         1
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  Case # PD­0036­15
   Case Information
   Location                                     Court Of Criminal Appeals
   Date Filed                                   02/09/2015 11:40:57 PM
   Case Number                                  PD­0036­15
   Case Description
   Assigned to Judge
   Attorney                                     Marisol Carvajal­Garcia
   Firm Name                                    Marisol Carvajal­Garcia
   Filed By                                     Marisol Carvajal­Garcia
   Filer Type                                   Not Applicable
   Fees
   Convenience Fee                              $0.00
   Total Court Case Fees                        $0.00
   Total Court Filing Fees                      $0.00
   Total Court Service Fees                     $0.00
   Total Filing & Service Fees                  $0.00
   Total Service Tax Fees                       $0.00
   Total Provider Service Fees                  $0.00
   Total Provider Tax Fees                      $0.00
   Grand Total                                  $0.00
   Payment
   Account Name                                 Chase Visa
   Transaction Amount                           $0.00
   Transaction Response
   Transaction ID                               6718719
   Order #                                      004082435­0

   Petition for Discretionary Review
   Filing Type                                                                EFileAndServe
   Filing Code                                                                Petition for Discretionary Review
   Filing Description
   Reference Number
   Comments
   Status                                                                     Rejected
   Fees
   Court Fee                                                                  $0.00
   Service Fee                                                                $0.00
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2/11/2015                                                                  Envelope Details

   Rejection Information
   Rejection
             Time       Rejection Comment
   Reason
             02/11/2015 The petition for discretionary review does not contain the identity of Judge,
   Other     04:03:32   Parties and Counsel [Rule 68.4(a)]. You have ten days to file a corrected
             PM         petition.
   Documents
   Lead Document                  PDR Cover Letter Enrique Gonzalez ­ PDF.pdf                 [Original]
   Attachments                    PDR Enrique Gonzalez, Jr. ­ PDF.pdf                         [Original]


   eService Details
   Name/Email              Firm              Service Type                                      Status    Served   Date/Time Opened
   District Attorney 229th
                           Marisol Carvajal­
   Judicial District                         EServe                                            Sent      Yes      Not Opened
                           Garcia
   duval229da@yahoo.com




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