                           NUMBER 13-17-00338-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

JOHNNY BALDERA JR.,                                                       Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 24th District Court
                        of Calhoun County, Texas.


                        MEMORANDUM OPINION
            Before Justices Contreras, Longoria, and Hinojosa
               Memorandum Opinion by Justice Contreras
      Appellant Johnny Baldera Jr. was convicted of indecency with a child by contact,

a second-degree felony. See TEX. PENAL CODE ANN. § 21.11 (West, Westlaw through

2017 1st C.S.). The jury found that Baldera was a habitual felony offender and assessed
punishment at 27 years’ imprisonment. See id. § 12.42(d) (West, Westlaw through 2017

1st C.S.) (enhancing a habitual felony offender’s punishment to “any term of not more

than 99 years or less than 25 years”). On appeal, Baldera contends by one issue that

the trial court erred by failing to instruct the jury on the jailhouse-witness corroboration

rule. See TEX. CODE CRIM. PROC. ANN. art. 38.075 (West, Westlaw through 2017 1st C.S.).

We affirm.

                                        I. BACKGROUND

         Appellant was charged by indictment with continuous sexual abuse of a child, a

first-degree felony. See TEX. PENAL CODE ANN. § 21.02 (West, Westlaw through 2017 1st

C.S.).

         J.V., who was thirteen years of age at the time of trial, testified that appellant lived

with her and her mother in 2014, when she was in the fourth grade. She stated that

appellant touched her private parts and put his finger insider her private parts while her

mother was away at work. She did not tell anyone about the abuse at first because she

was scared of appellant. She told her mother about the abuse several months later, after

the funeral of her uncle, who had always told her to tell the truth.

         D.A., an extraneous offense witness who was sixteen years of age at the time of

trial, testified that appellant “took out his private area and made me start feeling on him”

and put his fingers inside her private area when she was around thirteen years of age,

while her mother was away at work.

         Kevin Charles Johnson testified that he was an inmate at the Calhoun County Jail

and that he and appellant were in the same pod. Johnson stated that appellant talked to

him about appellant’s case, and that appellant wanted Johnson to testify on his behalf.


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When asked what appellant wanted him to testify to, Johnson replied:

       He wanted me to—he asked me if I would testify that in the end of November
       that he come and asked me for a job on—if I wanted a job on his tug boat.
       This is what was supposed to be said. I was supposed to say no, that I
       worked at the Ford dealership, which I did at that time. And then he wanted
       me to say that, well, . . . a couple weeks later that I was supposed to go to
       his house and knock on the door and his girlfriend open the door and I ask
       where YoYo was, that’s his nickname, YoYo, and she said that he no longer
       live here no more. And that’s it.

Johnson testified that he refused to testify as appellant asked because it was not true.

       Appellant denied inappropriately touching J.V. or asking Johnson to lie for him.

However, he agreed with the prosecutor that “there’s no way [J.V. and D.A.] could have

gotten together to dream up these stories against you.”

       During closing argument, the prosecutor referenced Johnson’s testimony as

follows:

       [T]oday you heard that Mr. Baldera asked somebody to essentially lie for
       him. Mr. Kevin Johnson came in and said that’s what he testified to, that
       Mr. Baldera asked him to say he was living in a place that he really wasn’t
       at a time when he was living with [J.V.’s mother] and her three children.
       Why would he do that?

       The jury convicted appellant of the lesser-included offense of indecency with a

child by contact, see id. § 21.11, and this appeal followed.

                                      II. DISCUSSION

A.     Standard of Review

       When an appellant alleges error in the jury charge but the alleged error was not

objected to at trial, as here, we will reverse only if we find error causing egregious harm.

Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)). Egregious harm will be found

only if the error deprived the defendant of a fair and impartial trial. Id. The record must

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disclose actual rather than theoretical harm, and the error must have affected the very

basis of the case, deprived the defendant of a valuable right, or vitally affected a defensive

theory. Id. In reviewing for egregious harm, we consider “the entire jury charge, the state

of the evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information revealed by the record of the trial

as a whole.” Almanza, 686 S.W.2d at 171.

B.     Applicable Law

       The trial court is required to give the jury a written charge “distinctly setting forth

the law applicable to the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West,

Westlaw through 2017 1st C.S.). An accused generally has the right to an instruction on

any defensive issue raised by the evidence, whether that evidence is weak or strong,

unimpeached or contradicted, and regardless of what the trial court may or may not think

about the credibility of the evidence. Sanchez v. State, 400 S.W.3d 595, 598 (Tex. Crim.

App. 2013) (noting that “[t]his rule is designed to ensure that the jury, not the judge,

decides the credibility of the evidence”).

       “Jailhouse-witness testimony is inherently unreliable due to the inmate’s incentive

to better his circumstances.” Phillips v. State, 463 S.W.3d 59, 66 (Tex. Crim. App. 2015).

In recognition of this fact, the legislature enacted article 38.075 of the Texas Code of

Criminal Procedure, which provides:

       A defendant may not be convicted of an offense on the testimony of a
       person to whom the defendant made a statement against the defendant’s
       interest during a time when the person was imprisoned or confined in the
       same correctional facility as the defendant unless the testimony is
       corroborated by other evidence tending to connect the defendant with the
       offense committed.



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TEX. CODE CRIM. PROC. ANN. art. 38.075(a).               Corroboration is not sufficient for the

purposes of article 38.075 if the corroboration only shows that the offense was committed.

Id. art. 38.075(b). A statement that is against a defendant’s interest is one that is adverse

to his position. Phillips, 463 S.W.3d at 68.

B.      Analysis

        Appellant contends that, in light of Johnson’s jailhouse-witness testimony, the trial

court erred by failing to instruct the jury sua sponte on the corroboration requirement of

article 38.075. Assuming, but not deciding, that the trial court’s failure to do so was

erroneous, we will review the record to determine whether appellant suffered egregious

harm as a result of the presumed error.1 See Nava, 415 S.W.3d at 298. In doing so, we

eliminate all of Johnson’s testimony regarding appellant’s statements and “determine if

the remaining inculpatory evidence tends to connect appellant to the offense.” Brooks v.

State, 357 S.W.3d 777, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d).

        Here, the record contains substantial evidence, aside from Johnson’s testimony,

tending to connect appellant with the offense committed, including J.V.’s direct testimony

that appellant sexually abused her, D.A.’s testimony that appellant abused her in a similar

manner, and appellant’s own admission that the victims could not have “dream[ed] up

these stories.” Therefore, even if the trial court had instructed the jury on article 38.075,

the jury was overwhelmingly likely to have concluded that there was “other evidence

tending to connect the defendant with the offense committed.” TEX. CODE CRIM. PROC.

ANN. art. 38.075(a). Even assuming that the jury, were it instructed on article 38.075,


        1On appeal, the State concedes that appellant was entitled to an article 38.075 instruction, but
argues that he did not suffer egregious harm from its omission.


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would have disregarded Johnson’s testimony for lack of corroboration, that testimony was

ultimately insignificant in light of J.V.’s direct testimony of appellant’s abuse. That is, even

considering that the prosecutor mentioned Johnson’s testimony in closing argument, we

cannot conclude that the admission of that testimony “affected the very basis of the case,

deprived the defendant of a valuable right, or vitally affected a defensive theory.” See

Nava, 415 S.W.3d at 298.

       Appellant argues that the case is very similar to Phillips, in which the Texas Court

of Criminal Appeals held that the trial court erred in failing to issue an article 38.075

instruction. See Phillips, 463 S.W.3d at 68. Indeed, the jailhouse-witness testimony at

issue in that case, like Johnson’s testimony, indicated that the appellant asked the witness

to lie on his behalf. See id. at 63. However, though the Phillips Court found error in the

lack of an article 38.075 instruction, it remanded to the court of appeals for a harm

analysis, see id. at 68–69, and the court of appeals found on remand that the appellant

did not suffer egregious harm. See Phillips v. State, No. 10-12-00164-CR, 2015 WL

7443625, at *3 (Tex. App.—Waco Nov. 19, 2015, pet. ref’d) (mem. op., not designated

for publication) (noting that, under the egregious harm standard, “the omission of the

instruction is generally harmless unless the corroborating evidence is so unconvincing in

fact as to render the State’s overall case for conviction clearly and significantly less

persuasive”).

       Having reviewed the entire record, including the jury charge, the evidence, and

arguments by counsel, we conclude that the lack of an article 38.075 instruction did not

deprive appellant of a fair and impartial trial. See Nava, 415 S.W.3d at 298. Therefore,

any error did not cause egregious harm. We overrule appellant’s issue on appeal.


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                                     III. CONCLUSION

       The trial court’s judgment is affirmed.


                                                       DORI CONTRERAS
                                                       Justice


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

Delivered and filed the
23rd day of August, 2018.




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