                            NUMBER 13-09-616-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

HECTOR ROQUE SALINAS JR.,                                                 Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 94th District Court
                        of Nueces County, Texas.


                        MEMORANDUM OPINION
                  Before Justices Garza, Vela, and Perkes
                   Memorandum Opinion by Justice Vela

      Appellant, Hector Roque Salinas Jr., was indicted on five counts of indecency with

a child by contact, a second-degree felony. See TEX. PENAL CODE ANN. § 21.11(a)(1)
(West Supp. 2010).         The indictment alleged that Salinas had a prior conviction for

aggravated sexual assault of a child.             A jury convicted Salinas of three counts of

indecency with a child by contact, and after finding that he had not been previously

convicted of aggravated sexual assault of a child, assessed punishment at twenty years‘

imprisonment and a $10,000 fine for each count. The trial court ordered the sentences

to run consecutively. By five issues, Salinas argues that: (1) the prosecutor used

perjured testimony; (2) the trial court abused its discretion in excluding evidence; (3)

section 12.42(g) of the Texas Penal Code violates due process; (4) the trial court erred in

refusing to allow the defense to reopen; and (5) the trial court erred in overruling defense

counsel‘s objection to the prosecutor‘s jury argument. We affirm.1

                                             I. DISCUSSION

A. Alleged Use of Perjured Testimony

        In issue one, Salinas argues he was denied due process by the prosecutor‘s

alleged use of material perjured testimony. During the guilt-innocence phase, the State

called a rebuttal witness, Corpus Christi police officer J.R. Rodriguez, who testified that in

1994 and 1995, he investigated cases involving sexual-abuse victims allegedly victimized

by Salinas. Salinas argues that no corroborating physical evidence of these allegations

exists and that Officer Rodriguez‘s ―testimony to the contrary was perjurious.‖

        Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of

error, and states, in part:



        1
        Salinas does not challenge the sufficiency of the evidence to support his convictions. As this is a
memorandum opinion, and the parties are familiar with the facts, we will not recite them here except as
necessary to explain the Court‘s decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
                                                    2
       (a) In General. As a prerequisite to presenting a complaint for appellate
       review, the record must show that:

              (1) the complaint was made to the trial court by a timely request,
              objection, or motion that:

              (A) stated the grounds for the ruling that the complaining party
              sought from the trial court with sufficient specificity to make the trial
              court aware of the complaint, unless the specific grounds were
              apparent from the context;

TEX. R. APP. P. 33.1.

       This rule encompasses the concept of ―party responsibility.‖ Reyna v. State, 168

S.W.3d 173, 176 (Tex. Crim. App. 2005).               ―The complaining party bears the

responsibility of clearly conveying to the trial judge the particular complaint, including the

precise and proper application of the law as well as the underlying rationale.‖ Id. at 177.

―To avoid forfeiting a complaint on appeal, the party must ‗let the trial judge know what he

wants, why he thinks he is entitled to it, and to do so clearly enough for the judge to

understand him at a time when the judge is in the proper position to do something about

it.‘‖ Pena v. State, 285 S.W.3d 459, 464 (Tex. Crim. App. 2009) (quoting Lankston v.

State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). This method gives the trial court

and the opposing party a chance to correct the error. Id. ―Whether a party‘s particular

complaint is preserved depends on whether the complaint on appeal comports with the

complaint made at trial. In making this determination, we consider the context in which

the complaint was made and the parties‘ shared understanding at that time.‖                Id.

(footnote omitted).

       Here, defense counsel did not object at trial that any part of Officer Rodriguez‘s

testimony was either perjurious or constituted perjured testimony. Thus, Salinas did not

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satisfy his ―responsibility of clearly conveying to the trial judge the particular complaint,

including the precise and proper application of the law as well as the underlying

rationale.‖   Reyna, 168 S.W.3d at 177.                  We hold, therefore, that Salinas did not

preserve this complaint for appellate review. See TEX. R. APP. P. 33.1; Reyna, 168

S.W.3d at 177. Issue one is overruled.

B. Exclusion of Evidence

       In issue two, Salinas argues the trial court abused its discretion by excluding

evidence that he was innocent of an extraneous offense to which he had pleaded guilty in

trial court cause no. 95-CR-920-D.2

       1. Background

       During the guilt-innocence phase, Salinas, on direct-examination, denied that he

had improperly touched the alleged victims in this case or ―any other child[.]‖ During

Salinas‘ cross-examination, the prosecutor asked him, ―So your testimony to this jury is

that you‘ve never touched any children— . . . inappropriately?‖ In response, he said,

―That is correct.‖ While still on cross-examination, Salinas identified State‘s exhibit 183

as the ―judicial confession and stipulation‖ in cause no. 95-CR-920-D.                 When the

prosecutor asked Salinas to read from the exhibit, Salinas stated, in relevant part, as

follows:

       I am pleading guilty to the offense of aggravated sexual assault of a child
       because I am guilty. My plea is freely, voluntarily, knowingly and
       intelligently given. On this day, in open court, I, Hector Salinas, waive my
       right against self-incrimination and hereby judiciously [sic] confess that on
       October 13, 1994, in Nueces County, Texas, I did then and there, by

       2
        This is not the offense alleged in the indictment for enhancement purposes.
       3
        The trial court admitted State‘s exhibit 18 into evidence.
                                                     4
       inserting his penis intentionally or knowingly cause the penetration of a
       [victim‘s name], a male child younger than 14 years of age who was not
       then the spouse of the defendant.

When the prosecutor asked Salinas, ―Now, it says you did there intentionally or knowingly

insert your penis into the anus of [victim‘s name]; is that correct?‖, he said, ―That is what

that states.‖

       After Salinas finished testifying, defense counsel offered into evidence the Nueces

County MHMR medical records of the alleged victim in cause no. 95-CR-920-D. These

records show that the victim told an MHMR counselor that he was abused by his

stepfather. These records do not indicate that Salinas abused the victim. The trial court

excluded the records4 on the grounds that the custodian of records was not present to

testify and that defense counsel could not ―collaterally attack‖ the judgment in cause no.

95-CR-920-D.

       2. Applicable Law and Analysis

       A trial court‘s decision to admit or exclude evidence is reviewed under an

abuse-of-discretion standard. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App.

2002). ―The trial court abuses its discretion when the decision lies outside the zone of

reasonable disagreement.‖ McCarty v. State, 257 S.W.3d 238, 239 (Tex. Crim. App.

2008). ―[I]f the trial court‘s evidentiary ruling is correct on any theory of law applicable to

that ruling, it will not be disturbed even if the trial judge gave the wrong reason for his right

ruling.‖ De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

       Medical records are hearsay but may be admitted as a business record. See TEX.

R. EVID. 801(d), 803(6). To be admitted as a business record, the medical record must
       4
        The trial court did allow defense counsel to make a bill of exceptions.
                                                    5
be ―made at or near the time by, or from information transmitted by, a person with

knowledge, if kept in the course of a regularly conducted business activity, and if it was

the regular practice of that business activity to make the . . . record. . . .‖ TEX. R. EVID.

803(6). All of these elements must be ―shown by the testimony of the custodian or other

qualified witness, . . . .‖ Id.

       Here, defense counsel tried to admit the MHMR records through the testimony of

Alice Serrano. Serrano testified she was a disability advocate with MHMR and was

familiar with their records. However, she did not lay the predicate for the introduction of

the alleged victim‘s statements to MHMR as a business record. She did not testify that

the alleged victim‘s statements were kept in the course of a regularly conducted business

activity or that it was a regular practice to keep records of such statements. She was not

the custodian of records and did not make the records. There was no evidence that the

records were business records. Thus, the trial court‘s decision to exclude the records

did not fall outside the zone of reasonable disagreement. See McCarty, 257 S.W.3d at

239. We hold that the trial court did not abuse its discretion by excluding these records.

Issue two is overruled.

C. Violation of Due Process

       In issue three, Salinas argues that Section 12.42(g) of the Texas Penal Code ―is a

violation of Due Process.‖

       1. Application of Section 12.42(g)

       Subsection 12.42(g)(1) allows unrevoked probations and deferred adjudications of

certain offenses to be used for enhancement purposes. See TEX. PENAL CODE ANN. §


                                             6
12.42(g)(1) (West Supp. 2010). Subsection 12.42(g)(2) permits prior convictions from

other states to be used for enhancement. See id. § 12.42(g)(2).

       In this case, the jury convicted Salinas of three counts of indecency with a child by

contact, and the punishment charge included a separate verdict form for each of the three

counts. On each of these verdict forms, the jury declined to find that Salinas had been

previously convicted of a felony offense i.e., aggravated sexual assault of a child.

       2. Doctrine of Mootness

       The doctrine of mootness limits courts to deciding cases in which an actual

controversy exists.   Clements v. Haskovec, 251 S.W.3d 79, 84 (Tex. App.–Corpus

Christi 2008, no pet.). ―An issue becomes moot when the controversy ceases to exist,

and courts have no jurisdiction to issue advisory opinions under the Texas Constitution.‖

Ngo v. Ngo, 133 S.W.3d 688, 691 (Tex. App.–Corpus Christi 2003, no pet.) (citing Valley

Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000)). Here, the jury, when

assessing punishment for each of the three counts, declined to find that Salinas had a

previous conviction for aggravated sexual assault of a child.          Thus, there is no

controversy because Salinas‘ punishment for each count of indecency with a child by

contact was not enhanced under the provisions of section 12.42. We hold therefore that

the issue is moot. See id. Issue three is overruled.

D. Request to Reopen

       In issue four, Salinas argues the trial court erred by denying his request to reopen

the case.    During the guilt-innocence phase, the prosecutor made the following

argument to the jury: ―I‘d also like to talk about the children [sic] have not accused


                                             7
anyone else. There‘s been no evidence that these little boys[ 5] or the prior little boys[6]

accused anyone else ever in their life of molesting them.‖                       After the prosecutor

completed her closing argument, defense counsel objected that ―she [the prosecutor] told

the jury that there was no evidence that any of those boys were molested by somebody

else.‖ Defense counsel told the trial court, ―I want to reopen the evidence and put that

[the MHMR records discussed in issue two] in.‖ The trial court denied the request to

reopen.

        The decision to reopen a case is left to the trial court‘s sound discretion.

Kennerson v. State, 984 S.W.2d 705, 707 (Tex. App.–Houston [1st Dist.] 1998, pet. ref‘d).

Thus, we review the trial court‘s decision not to reopen evidence under an

abuse-of-discretion standard. See Thompson v. State, 480 S.W.2d 624, 629 (Tex. Crim.

App. 1972). ―A trial judge is required to reopen a case under Art. 36.02 [of the Texas

Code of Criminal Procedure] only if the proffered evidence is ‗necessary to a due

administration of justice.‘‖ Peek v. State, 106 S.W.3d 72, 79 (Tex. Crim. App. 2003)

(quoting article 36.02 (West 2007)). ―[A] ‗due administration of justice‘ means a judge

should reopen the case if the evidence would materially change the case in the

proponent‘s favor.‖ Id.

        Here, defense counsel sought to reopen the case in order to introduce the MHMR

records of a boy whom Salinas had pleaded guilty to sexually abusing. The MHMR

records indicate the boy had told an MHMR counselor that his stepfather had sexually


        5
         This is a reference to the victims in the instant case.
        6
        This is a reference to the victim alleged in the enhancement allegation and to the victim alleged in
cause no. 95-CR-920-D, which was discussed in issue two.
                                                      8
abused him. The records did not indicate that Salinas had sexually abused him. We

have previously stated in issue two that the trial court did not err in excluding the MHMR

records.   Even assuming the records were admissible, defense counsel sought to

introduce them in order to show that one of Salinas‘ alleged victims in a previous case had

also accused someone else of molesting him. The proffered evidence does not concern

any of the victims in the present case. Thus, the proffered evidence would not have

materially changed the case in the proponent‘s favor. We hold that the trial court did not

abuse its discretion by denying defense counsel‘s request to reopen the case. Issue four

is overruled.

E. Closing Argument

       In issue five, Salinas argues the trial court erred in overruling his defense counsel‘s

objection to the prosecutor‘s allegedly improper closing argument to the jury.             As

previously noted, during the guilt-innocence phase, the prosecutor argued to the jury:

―I‘d also like to talk about the children [sic] have not accused anyone else. There‘s been

no evidence that these little boys or the prior little boys accused anyone else ever in their

life of molesting them.‖ Defense counsel did not immediately object to this portion of the

prosecutor‘s closing argument.       After the prosecutor completed her entire closing

argument, defense counsel objected that the above-quoted argument was ―an intentional

deception to the jury.‖ The trial court overruled the objection.

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

show that the complaint was made to the trial court by a timely request, objection, or

motion.‖ McDonald v. State, 186 S.W.3d 86, 91 (Tex. App.–Houston [1st Dist.] 2005, no


                                              9
pet.) (applying rule to jury argument) (citing TEX. R. APP. P. 33.1(a)(1)).     ―A party‘s

complaint is regarded as timely when it was ‗made as soon as the ground for complaint is

apparent or should be apparent.‘‖ Lovill v. State, 319 S.W.3d 687, 692 (Tex. Crim. App.

2009) (quoting Aguilar v. State, 26 S.W.3d 901, 906 (Tex. Crim. App. 2000)); see Turner

v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991) (stating that ―[t]o preserve error for

appellate review, the complaining party must make a timely, specific objection. The

objection must be made at the earliest possible opportunity.‖).

       Here, the ground for complaint became apparent when the prosecutor made the

complained-of argument. The record does not show that the ground for complaint did

not become apparent until the prosecutor completed her entire closing argument. Thus,

the objection was untimely because it should have been lodged as soon as the

prosecutor made the complained-of argument. We therefore hold that Salinas failed to

preserve this complaint for appellate review. See TEX. R. APP. P. 33.1(a); Penry v. State,

903 S.W.2d 715, 764 (Tex. Crim. App. 1995) (holding that in the context of jury argument,

the defendant, ―[b]y failing to object at the earliest possible moment, . . . has preserved

nothing for [appellate] review.‖); see Curtis v. State, 640 S.W.2d 615, 618 (Tex. Crim.

App. 1982) (holding that in the context of jury argument, ―when a comment, remark,

assertion or line of argument is deemed improper the time to redress and cure it is when it

is made, and the means is the contemporaneous objection that invoke palliative

responses from the trial judge.‖). Issue five is overruled.




                                            10
                                      II. CONCLUSION

       We affirm the trial court‘s judgment.



                                                    ROSE VELA
                                                    Justice

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

Delivered and filed the
12th day of May, 2011.




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