                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00206-CR


EDUARDO ESPINOZA                                                        APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE


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      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                    TRIAL COURT NO. 1267998R

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                         MEMORANDUM OPINION1

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      A jury convicted Appellant Eduardo Espinoza of two counts of aggravated

sexual assault of a child under fourteen years of age and sentenced him to

confinement for life. In a motion for new trial, Espinoza argued that prosecutorial

and judicial misconduct during trial had resulted in a violation of his constitutional




      1
       See Tex. R. App. P. 47.4.
rights. The Honorable Judge Ruben Gonzalez Jr. was assigned to hear the

motion and denied it after a hearing.

      In a single point, Espinoza argues that the trial court abused its discretion

by denying his motion for new trial because his constitutional rights were violated

when Eunice Romero, his girlfriend and the complainant’s aunt, was prevented

from testifying after the prosecutor threatened her with charges of perjury and

witness tampering and the trial judge admonished her regarding the possibility of

these charges before appointing counsel for her.

      At the opening of the second day of trial, the following exchange took place

between the trial court and Romero outside the presence of the jury:

            THE COURT: I was just informed – what’s your name?

            MS. ROMERO: Eunice Romero.

            THE COURT: I’m sorry?

            MS. ROMERO: Eunice Romero.

             THE COURT: Eunice Romero? I was just informed by the
      lawyer for Mr. Espinoza that you want to testify about some
      allegations that could have occurred concerning a father of this
      injured party; is that correct?

            MS. ROMERO: Yes, sir.

            THE COURT: And it’s my understanding that you haven't
      talked to the police about this or anybody else—

            MS. ROMERO: No, sir.

           THE COURT: - in authority other than the lawyer for Mr.
      Espinoza; is that correct?



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      MS. ROMERO: Yes, sir.

      THE COURT: You’re also the girlfriend of Mr. Espinoza?

      MS. ROMERO: Yes.

      THE COURT: All right. Now-

      [DEFENSE COUNSEL]:        And she’s also the cousin of the

father.

      THE COURT: And you’re the cousin of the father?

      MS. ROMERO: Yes, sir.

        THE COURT: I haven’t decided whether or not that’s relevant,
and I’m not going to ask you any questions about that because there
are consequences that can occur, because if you’re not telling the
truth, the State can file perjury charges against you.

      MS. ROMERO: Yes, sir.

      THE COURT: Do you understand that?

      MS. ROMERO: Uh-huh.

      THE COURT: They can also charge you with witness
tampering if you were talking to some of the witnesses about this
who are involved in this case. So it can become very serious and I
want you to understand that. Before I decide whether or not it’s
relevant, I am going to ask you—I think that you need a lawyer.

      MS. ROMERO: Okay.

       THE COURT: Because if something criminal comes out of
this, you need to know what your rights are. Do you understand?

      MS. ROMERO: Uh-huh.

      THE COURT:      Now, I know this lady is a lawyer and she
talked with you—



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             MS. ROMERO: Yes.

             THE COURT: —but she doesn’t represent you.

             MS. ROMERO: Right.

            THE COURT: She represents Mr. Espinoza. So you need
      somebody who is going to represent you if, in fact, this is going to
      take place. Can you hire a lawyer? Do you have any money to hire
      a lawyer?

             MS. ROMERO: No.

            THE COURT: All right. Do you want me to appoint you a
      lawyer on this?

             MS. ROMERO: Yes.

             THE COURT: So he can talk with you?

             MS. ROMERO: Yes.

            THE COURT: Okay. Then I’ll do that. I want you to remain
      over there. Don’t talk to anybody else about this until I get some
      lawyer to talk with you about it. Okay?

             MS. ROMERO: Okay.

             THE COURT: Okay. Have a seat.

      Espinoza did not object during or after the trial court’s discussion with

Romero, nor did he raise a complaint regarding the prosecutor’s conduct towards

Romero at any point during the trial. Instead, after testifying on his own behalf,

Espinoza rested his case without calling the trial court’s attention back to Romero

and raised the issue for the first time in his motion for new trial.

      Although the trial court has the discretion to grant a motion for new trial on

an unpreserved error raised in a post-trial motion, if the trial court denies the


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motion for new trial, “the defendant, as the losing party, must have preserved that

same error before he may claim it as a basis for reversing the trial judge once he

moves into the appellate court.” State v. Herndon, 215 S.W.3d 901, 909 (Tex.

Crim. App. 2007); see Canales v. State, 98 S.W.3d 690, 699 (Tex. Crim. App.

2003) (holding appellant failed to preserve complaint that prosecutor read letter

to jury with unfairly prejudicial inflection when appellant made no objection while

letter was being read), cert. denied, 540 U.S. 1051 (2003); Cavazos v. State, 904

S.W.2d 744, 748 (Tex. App.—Corpus Christi 1995, pet. ref’d) (holding appellant

did not preserve complaint that trial court intimidated witness when appellant

failed to object at trial on that ground). Accordingly, we overrule Espinoza’s sole

point as unpreserved and affirm the trial court’s judgment. 2 See id.; see also

Tex. R. App. 33.1(a)(1).




      2
        While Espinoza attempts to sidestep the preservation requirements by
arguing that the trial court abused its discretion by denying his motion for new
trial—as opposed to directly attacking the alleged misconduct and its effect on
his constitutional rights—the court of criminal appeals clarified in Herndon that a
trial court does not abuse its discretion when it denies a motion for new trial
based on failure to preserve error. See 215 S.W.3d at 911 n.39. Here, Judge
Gonzalez expressly noted that “if the lawyer believes that a witness is being
precluded from testifying by [coercion], threats, [or] force or fraud, there are
remedies available by making objections, making a proffer, [or] calling the
witness outside the presence of the jury. And from the record, none of that was
attempted.”


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                                             /s/ Bob McCoy

                                             BOB MCCOY
                                             JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and MCCOY, JJ.

Livingston, C.J., concurs without opinion.

Walker, J., concurs without opinion.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: September 18, 2014




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