                              Fourth Court of Appeals
                                     San Antonio, Texas
                                            OPINION

                                        No. 04-18-00484-CR

                                    David Asa VILLARREAL,
                                            Appellant

                                                 v.

                                       The STATE of Texas,
                                             Appellee

                     From the 186th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2016CR0549
                            Honorable Jefferson Moore, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice
Dissenting Opinion by: Rebeca C. Martinez, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice

Delivered and Filed: December 27, 2019

AFFIRMED

           A jury convicted appellant David Asa Villarreal (“Villarreal”) of murder with a repeat

offender enhancement and sentenced him to confinement for sixty years. In two issues on appeal,

Villarreal argues the trial court erred by admitting hearsay testimony and by limiting his ability to

confer with counsel during an overnight recess in violation of his Sixth Amendment right to

counsel. We affirm the trial court’s judgment.
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                                    Admission of Evidence

       In his first issue, Villarreal argues the trial court erred by admitting, over his hearsay

objection, testimony regarding the contents of a text message sent on the night of the murder by

the victim to Veronica Hernandez, a mutual friend of Villarreal and the victim. During

Hernandez’s direct examination, the following exchange occurred:

             Q. [by the prosecutor] So when [Villarreal and the victim] got back, what
       happened after that?

              A. [by Hernandez] [The victim] sent me a text and he said—

              [DEFENSE COUNSEL]: Objection, hearsay, Your Honor. And lack of
       foundation, especially when it comes to cell phones and spoofing and phone
       numbers and who actually sent from what phone. I don’t think the proper
       foundation has been laid for her to know exactly who sent what message.

              THE COURT: It’s overruled. Go ahead.

              Q. [by the prosecutor] Being that you hung out with [the victim] a lot, were
       you familiar with his phone number?

              A. [by Hernandez] Yes, ma’am.

              Q. Did you have it programmed in your telephone[?]

              A. Yes, ma’am.

              Q. Did you text [the victim] a lot?

              A. I did.

              ...

             Q. Okay. And it was common for you guys to have conversations over text
       messages?

              A. Yes, ma’am.

              Q. Okay. So that night, did you end up spending the night?

              A. No, ma’am.

              Q. Why not?


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                A. He told me—[the victim] told me that [Villarreal] wanted to work things
        out, and he was trying to make peace with [Villarreal]. That was—

                Q. Were they having problems in their relationship?

                A. I guess so.

                [DEFENSE COUNSEL]: Objection then to the speculation.

                THE COURT: Overruled. Go ahead.

        As a prerequisite to presenting a complaint for appellate review, the record must show the

complaint was made to the trial court by timely objection. TEX. R. APP. P. 33.1(a)(1). Where the

complaint raised on appeal does not comport with the trial objection, nothing is preserved for our

review. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Huerta v. State, 933 S.W.2d

648, 650 (Tex. App.—San Antonio 1996, no pet.). “In addition, a party must object each time the

inadmissible evidence is offered or obtain a running objection.” Valle v. State, 109 S.W.3d 500,

509 (Tex. Crim. App. 2003). “An error in the admission of evidence is cured where the same

evidence comes in elsewhere without objection.” Id.

        Here, although the trial court overruled Villarreal’s initial hearsay objection, Hernandez

did not immediately testify regarding the contents of the victim’s text message. Rather, after

answering several additional questions regarding her familiarity with the victim’s telephone

number and the frequency of her communications with the victim, Hernandez eventually relayed

the contents of the victim’s text message in response to a different question. Villarreal objected to

Hernandez’s response to the latter question on the basis of speculation but not hearsay.

Accordingly, because Villarreal failed to obtain a ruling on a running objection or to re-urge his

objection to the testimony on the basis of hearsay, his hearsay complaint is not preserved.

Villarreal’s first issue is overruled.




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                                        Sixth Amendment

       In his second issue, Villarreal argues the trial court erred by limiting his ability to confer

with his counsel during an overnight recess in violation of his Sixth Amendment right to counsel.

Specifically, Villarreal complains of the following exchange between the trial court and

Villarreal’s counsel, which took place during Villarreal’s direct examination and prior to an

overnight recess:

               THE COURT: . . . Mr. Villarreal, we’re in an unusual situation. You are
       right in the middle of testimony. Normally your lawyer couldn’t come up and
       confer with you about your testimony in the middle of having the jury hear your
       testimony. And so I’d like to tell you that you can’t confer with your attorney but
       the same time you have a Fifth Amendment [sic] right to talk to your attorney.

                So I’m really going to put the burden on [trial counsel] to tell you the truth.
       . . . I’m going to ask that both of you [trial counsel] pretend that Mr. Villarreal is
       on the stand. You couldn’t confer with him during that time.

              Now, Mr. Villarreal, if—puts us in an odd situation. But I believe if you
       need to talk to your attorneys, I’m not telling you, you can’t talk to them. But I’m
       going to rely on both [trial counsel] to use your best judgment in talking to the
       defendant because you can’t—you couldn’t confer with him while he was on the
       stand about his testimony. So I’m going to leave it to both of your good judgment
       of how you manage that, if for some reason he believes he needs to confer.

               [TRIAL COUNSEL 1]: All right. So just so I am clear and don’t violate any
       court orders, that—because he is still on direct and still testifying, that it is your
       ruling that we cannot confer with our client?

               THE COURT: Let me help you with that. For instance, suppose we go into
       a sentencing hearing and you need to start talking to him about possible sentencing
       issues, you can do that. Does that make sense? I don’t want you discussing what
       you couldn’t discuss with him if he was on the stand in front of the Jury.

               [TRIAL COUNSEL 1]: Okay.

              THE COURT: His testimony. I’m not sure whatever else you’d like to talk
       with him about while he’s on the stand. But ask yourselves before you talk to him
       about something, is this something that—manage his testimony in front of the jury?
       Does that make sense to you?

               [TRIAL COUNSEL 1]: Sure, it does.



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               [TRIAL COUNSEL 2]: We aren’t going to talk to him about the facts that
       he testified about.

               THE COURT: All right. Fair enough. But at the same time—I’m going to
       put the burden on the lawyers, not on him, because he has a constitutional right to
       confer with you. . . .

               [TRIAL COUNSEL 1]: Okay. All right. I understand the Court’s judgment
       and just—just for in the future, I’m just going to make an objection under the Sixth
       Amendment that the Court’s order infringes on our right to confer with our client
       without his defense.

                 THE COURT: Objection noted.

       The Sixth Amendment guarantees criminal defendants the right to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). In reviewing a complaint that the

trial court deprived a defendant of counsel during a portion of the trial, we apply an abuse of

discretion standard. Burks v. State, 227 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d) (citing Perry v. Leeke, 488 U.S. 272, 282 (1989); Geders v. United States, 425 U.S. 80,

86–91 (1976)).

       Although the trial court has “broad power to sequester witnesses before, during, and after

their testimony,” the Supreme Court has held this discretion is significantly limited by the Sixth

Amendment when applied to a testifying defendant. Geders, 425 U.S. at 87–88. In Geders, the

Supreme Court held the trial court abused its discretion by prohibiting the defendant from

consulting his counsel “about anything” during an overnight recess between the defendant’s direct

and cross-examinations. Id. at 88, 91.

       However, not every restriction on a defendant’s ability to communicate with his counsel

violates his Sixth Amendment right to counsel. In Perry, the Supreme Court held it was not an

abuse of discretion to prohibit a defendant from conferring with his counsel during a fifteen-minute

recess between the defendant’s direct and cross-examinations. 488 U.S. at 284–85. The Court

reasoned that because a defendant “has no constitutional right to consult with his lawyer while he


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is testifying,” the trial judge must have the power to “maintain the status quo during a brief recess

in which there is a virtual certainty that any conversation between the witness and the lawyer would

relate to the ongoing testimony.” Id. at 281, 283–84. Noting the “thin” line between the facts at

issue in Perry and those at issue in Geders, the Perry Court distinguished the fifteen-minute recess

from the overnight recess in Geders, explaining:

        The interruption in Geders was of a different character because the normal
        consultation between attorney and client that occurs during an overnight recess
        would encompass matters that go beyond the content of the defendant’s own
        testimony—matters that the defendant does have a constitutional right to discuss
        with his lawyer, such as the availability of other witnesses, trial tactics, or even the
        possibility of negotiating a plea bargain. . . . The fact that such discussions will
        inevitably include some consideration of the defendant’s ongoing testimony does
        not compromise that basic right.

Id. at 284.

        The Supreme Court, therefore, has recognized the trial court may prevent a testifying

defendant from discussing his ongoing testimony with his counsel but may not prohibit the

defendant and his counsel from discussing matters “that go beyond the content of the defendant’s

own testimony,” such as trial strategy. See id. In this case, the trial court tried to thread the needle

by advising Villarreal that he could talk to his attorneys during the overnight recess but instructing

Villarreal’s attorneys not to discuss “what you couldn’t discuss with [Villarreal] if he was on the

stand in front of the jury. . . . His testimony.” The trial court asked counsel if his instructions “make

sense to you,” and Villarreal’s two attorneys responded, respectively: “Sure, it does” and “We

aren’t going to talk to him about the facts that he testified about.” Although one of Villarreal’s

attorneys lodged a Sixth Amendment objection “just for in the future,” he reiterated: “I understand

the Court’s judgment.”

        In the years since the Perry decision, the Supreme Court has not squarely addressed the

precise question here—i.e., whether the trial court abuses its discretion by permitting the defendant



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to consult his counsel during an overnight recess about any topic except his ongoing testimony.

While the issue appears to be one of first impression in Texas, courts in other states and the federal

circuit courts of appeals have addressed it and reached opposing conclusions.

       Several state supreme courts have held that while the trial court may not prohibit all

communications between a testifying defendant and his attorney during an overnight recess, it may

prohibit communications specifically about the defendant’s ongoing testimony. E.g., Beckham v.

Commonwealth, 248 S.W.3d 547, 553–54 (Ky. 2008); State v. Conway, 842 N.E.2d 996, 1021

(Ohio 2006); Webb v. State, 663 A.2d 452, 459–60 (Del. 1995) (holding trial court properly

instructed testifying defendant “not to discuss [his] testimony with anyone” but erred by failing to

make it “unmistakably clear” that the defendant and his counsel could discuss “other matters”). In

contrast, several federal circuit courts of appeals have held any restriction on communication with

counsel during an overnight recess is impermissible. E.g., United States v. Triumph Capital Grp.,

Inc., 487 F.3d 124, 132–33 (2d Cir. 2007); United States v. Sandoval-Mendoza, 472 F.3d 645, 651

(9th Cir. 2006); United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000); United States v. Cobb,

905 F.2d 784, 792 (4th Cir. 1990).

       In the absence of any guidance from the court of criminal appeals or any of our sister courts

in Texas, and based on the Supreme Court’s decisions in Geders and Perry, we hold the trial court

had discretion to limit Villarreal’s right to confer with his attorneys during an overnight recess to

topics other than his ongoing testimony. Both Geders and Perry acknowledge that “when a

defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is

testifying.” Perry, 488 U.S. at 281; see also Geders, 425 U.S. at 88. Although Geders instructs

that the trial court had no discretion to prohibit Villarreal and his attorneys from discussing

“anything,” it did not do so. Rather, the trial court expressly recognized Villarreal’s constitutional

right to confer with his counsel and put the onus on counsel to ensure any discussions avoided the


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topic of Villarreal’s testimony. Villarreal’s attorneys repeatedly confirmed they understood the

trial court’s order. Accordingly, in this matter of first impression in Texas, we conclude the trial

court did not abuse its discretion in limiting Villarreal’s right to confer with his counsel during an

overnight recess to matters other than his ongoing trial testimony. Villarreal’s second issue is

overruled.

                                            Conclusion

       Having overruled both of Villarreal’s issues, we affirm the trial court’s judgment.

                                                   Sandee Bryan Marion, Chief Justice

PUBLISH




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