









 02-10-047-CR,  02-10-048-CR,  02-10-049-CR












 
 
 
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 
NOS. 02-10-00047-CR
         02-10-00048-CR 
         02-10-00049-CR

 
 
 



FRANCISCO VALDEZ MENDOZA


 


APPELLANT




 
V.
 




The State of Texas


 


STATE 



 
 
------------
 
FROM CRIMINAL DISTRICT Court No. 3 OF Tarrant
COUNTY
------------
MEMORANDUM
OPINION[1]
----------
I.  Introduction
Appellant Francisco Valdez Mendoza appeals his
convictions for four counts of aggravated sexual assault of a child and one
count of indecency with a child-sexual contact in Cause No. 1138470D, two
counts of aggravated kidnapping in Cause No. 1138471D, and one count of
burglary of a habitation with intent to commit the felony of aggravated sexual
assault in Cause No. 1148082D.  In two
issues, Mendoza argues that the trial court abused its discretion by stacking
the sentences and that the trial court erred by not granting a mistrial for the
State’s improper closing arguments.  We
will modify the judgment of conviction for indecency with a child-sexual
contact in Cause No. 1138470D to correct a clerical error, modify all of the
judgments to delete the cumulation order, and affirm as modified.
II.  Factual and
Procedural Background
          On the
night of April 13, 2008, thirteen-year-old J.R. was asleep on the couch in her
family’s house when she was awakened by Mendoza.  J.R. recognized Mendoza because she had seen
him at the neighbors’ house before. 
Mendoza picked up J.R. and carried her outside to a nearby alley.  J.R. tried to scream, but Mendoza covered her
mouth and told her to be quiet.  Mendoza
showed J.R. a knife and told her that he would kill her if she was not quiet.  Mendoza ripped off J.R.’s clothes and sexually
assaulted her.  He put his fingers and
his penis in her female sexual organ and anus, put his mouth to her female
sexual organ, made her touch his penis with her hand, and ejaculated into her
hand.    
When Mendoza became distracted by a car parked in the
alley, J.R. stood up, grabbed her pants and the knife, and ran towards her
house.  As she was running away, Mendoza
asked her why she was running and yelled, “When are we going to meet
again?”  J.R. woke up her mother, who
called 911, and an ambulance took J.R. to the hospital.  An exam of J.R. revealed trauma to her female
sexual organ, consisting of bruising, a tear to her hymen, and redness, and
revealed a puncture wound to the area between her vaginal opening and her anus.  
          About
one month later, on May 17, 2008, J.R. woke up and noticed that her bedroom
window was open and that the window air-conditioning unit was missing.  She walked to her parents’ room and noticed
someone standing in the hallway.  She
told her parents, and they searched the house.  J.R. walked past the bathroom and saw Mendoza
standing inside holding a knife.  He
tried to grab her legs, and her parents surrounded him while J.R. called 911.  DNA taken from Mendoza matched DNA recovered
during J.R.’s rape exam.      
Mendoza was charged with multiple counts in three
separate indictments.  The indictments in
Cause Nos. 1138470D and 1138471D charged Mendoza with offenses relating to the events
that occurred on April 13, 2008, and the indictment in Cause No. 1148082D charged
him with burglary of a habitation with intent to commit the felony of
aggravated sexual assault relating to the incident that occurred on May 17,
2008.  The State filed written notice of
its intent to consolidate, and all of the charged offenses were prosecuted in a
single criminal action.  
In Cause No. 1138470D, a jury found Mendoza guilty of four
counts of aggravated sexual assault of a child and one count of indecency with
a child-sexual contact and assessed his punishment at twenty-five years’
imprisonment for each of the sexual assault counts and at twenty years’
imprisonment for the indecency count.  In
Cause No. 1138471D, the jury found Mendoza not guilty of two counts of
aggravated kidnapping, found him guilty of the remaining three counts of
aggravated kidnapping, and assessed his punishment at twenty years’ imprisonment
for each of those three counts.  In Cause
No. 1148082D, the jury found Mendoza guilty of burglary of a habitation with
intent to commit the felony of aggravated sexual assault and assessed his
punishment at twenty-five years’ imprisonment.  The trial court sentenced him accordingly and ordered
all of the sentences in Cause No. 1138470D (for aggravated sexual assault of a
child and indecency with a child) and in Cause No. 1138471D (for aggravated
kidnapping) to run concurrently with each other but to run consecutively with the
twenty-five-year sentence in Cause No. 1148082D (for burglary).[2]     
III.  Clerical
Error in Judgment
          Our
review of the record has revealed an error in the judgment of conviction for
indecency with a child-sexual contact in Cause No. 1138470D.  Count seven of the indictment alleged that
Mendoza committed indecency with a child-sexual contact, the jury convicted him
of that offense and sentenced him to twenty years’ confinement for that
conviction, and the trial court orally pronounced the jury’s sentence at
trial.  However, the judgment for this
conviction incorrectly identifies the offense as aggravated sexual assault of a
child, rather than indecency with a child-sexual contact.  This error was not raised by either party at
the trial level or on appeal.
This court has the power to modify the judgment of the
court below to make the record speak the truth when we have the necessary
information to do so.  See Tex. R. App. P. 43.2(b) (providing
that appellate courts may modify judgments and affirm as modified); Bigley v. State, 865 S.W.2d 26, 27–28
(Tex. Crim. App. 1993); Asberry v. State,
813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d).  When a judgment and sentence improperly
reflect the findings of the jury, the proper remedy is reformation of the
judgment.  Aguirre v. State, 732 S.W.2d 320, 327 (Tex. Crim. App. [Panel Op.]
1982).  “The authority of an appellate
court to reform incorrect judgments is not dependent upon the request of any
party, nor does it turn on the question of whether a party has or has not
objected in the trial court.”  Asberry, 813 S.W.2d at 529–30.
Because the record establishes that the written
judgment of conviction for count seven in Cause No. 1138470D contains a
clerical error misstating the offense for which Mendoza was convicted, we
modify the judgment to correct that error and to show that Mendoza was
convicted of indecency with a child-sexual contact.  See Tex.
R. App. P. 43.2(b); Bigley, 865
S.W.2d at 27–28; see also Asberry,
813 S.W.2d at 529–30 (correcting written judgment to include the jury’s
affirmative deadly weapon finding); Lipsey
v. State, No. 05-07-00005-CR, 2007 WL 1978321, at *2 (Tex. App.—Dallas July
10, 2007, no pet.) (not designated for publication) (correcting written
judgment that mislabelled offense for which defendant was convicted as
indecency with a child when record reflected that he was actually convicted of
aggravated sexual assault of a child). 
IV.  The
Stacking Order
In his first issue, Mendoza argues that the trial court
abused its discretion by ordering that his sentences run consecutively.  Mendoza concedes that article 42.08 of the
code of criminal procedure allows for stacking of sentences, but he argues that
the trial court abused its discretion by stacking the sentences because he
elected to have the jury assess his punishment and the stacking order
“nullifies the decision of the jury.”  He
also argues that the stacking order constitutes cruel and unusual punishment
under the United States and Texas constitutions.  The State argues that no abuse of discretion
occurred because penal code section 3.03 authorized cumulative sentencing for
Mendoza’s multiple aggravated sexual assault of a child convictions and that
Mendoza waived his constitutional argument.  
A.  Law on Cumulative Sentencing
We review the trial court’s decision to stack or
cumulate sentences for an abuse of discretion.  See Tex.
Code Crim. Proc. Ann. art. 42.08(a) (Vernon Supp. 2010); Smith v. State, 575 S.W.2d 41, 41 (Tex. Crim. App. [Panel Op.] 1979);
Nicholas v. State, 56 S.W.3d 760, 765
(Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).  So long as the law allows the imposition of
cumulative sentences, the trial judge has absolute discretion to stack
sentences.  Nicholas, 56 S.W.3d at 765.
Under article 42.08 of the code of criminal procedure,
the trial judge has discretion to cumulate the sentences for two or more
convictions.  Tex. Code Crim. Proc. Ann.
art. 42.08(a).  Article 42.08 provides
that when a defendant has been convicted in two or more cases, the trial court
has discretion to order the judgment and sentence in the second conviction to
either (1) begin to run after the judgment and sentence imposed in the
preceding conviction ceased to operate, or (2) run concurrently with the
judgment and sentence imposed in the preceding conviction.  Id. 
The trial court’s general authority under article 42.08
to order consecutive sentences is statutorily limited by penal code section
3.03 when a defendant is found guilty of more than one offense arising out of the
“same criminal episode” and prosecuted in a single criminal action.  Tex. Penal Code Ann. § 3.03 (Vernon Supp.
2010); LaPorte v. State, 840 S.W.2d
412, 415 (Tex. Crim. App. 1992).   “[C]riminal episode” is defined as 
the commission of two or more offenses, regardless of whether the harm
is directed toward or inflicted upon more than one person or item of property,
under the following circumstances:
 
(1)  the offenses are committed
pursuant to the same transaction or pursuant to two or more transactions that
are connected or constitute a common scheme or plan; or
 
(2)  the offenses are the repeated
commission of the same or similar offenses.
 
Tex. Penal Code Ann. § 3.01 (Vernon 2003).  
When the convictions arise out of the same criminal
episode and the cases are tried together, subsection (a) of section 3.03
requires that the sentences shall run concurrently except as provided by
subsection (b).  Id. § 3.03.  Subsection (b)
provides the trial court with discretion to cumulate or stack the sentences “if
each sentence is for a conviction of” certain offenses, including aggravated
sexual assault of a child and indecency with a child.  See id. § 3.03(b). ­­­­  
B.  Same Criminal Episode[3]
In this case, all of the offenses were prosecuted in a
single criminal action.  Thus, penal code
section 3.03 applied to limit the trial court’s discretion to stack Mendoza’s
sentences if the offenses he committed on April 13, 2008 (the aggravated
kidnapping, aggravated sexual assault of a child, and indecency with a child
offenses) and the offense he committed one month later on May 17, 2008 (the
burglary offense) were part of the same criminal episode.[4]    
The offenses committed by Mendoza­ stemmed from two
separate incidents involving the same victim and committed within one month of
each other by entering that victim’s house while carrying a knife and while the
victim was sleeping.  In Baker v. State, the San Antonio Court of
Appeals held that the offenses of aggravated sexual assault, sexual assault
occurring ten months later, and burglary of a habitation with intent to commit
sexual assault occurring a month after the second offense were all part of the
same criminal episode.  107 S.W.3d 671,
673 (Tex. App.—San Antonio 2003, no pet.). 
The court reasoned that the offenses were a continuing course of sexual
assault on women living in the same area because each offense was directed at a
woman living in or near that area, occurred in or near each woman’s home while
she was alone, and took place in the early morning hours; alternatively, the
court reasoned that all three offenses were similar offenses under section
3.01.  Id. 
Here, like in Baker,
Mendoza’s burglary with intent to commit sexual assault was connected to and
constituted a common scheme with the sexual assault offenses that he had committed
one month earlier, and alternatively, under the facts of this case, they were
similar offenses.  See Tex. Penal Code Ann. § 3.01; Baker, 107 S.W.3d at 673; see
also Guidry v. State, 909 S.W.2d 584, 585 (Tex. App.—Corpus Christi 1995,
pet. ref’d) (explaining that section 3.01(2) does not impose a time
differential between the commission of the same or similar offenses).   
C.  Abuse of Discretion in Stacking Sentences
Having determined that section 3.03 applied in
Mendoza’s cases, we must determine whether the trial court’s cumulation order
is in compliance with that section.  The sentence
that the trial court chose to stack onto was for the burglary of a habitation
with intent to commit aggravated sexual assault conviction; the court did not
stack any of the sentences for the sexual offenses onto each other.  Burglary is not one of the offenses for which
stacking is provided under subsection (b); that is, it is not one of the
offenses exempted from the concurrent-sentencing requirement of subsection (a).  See Tex.
Penal Code Ann. § 3.03.  Therefore, the
trial court abused its discretion by entering a cumulation order stacking the
sentence for Mendoza’s burglary conviction. 
See id.; see also Yvanez v. State,
991 S.W.2d 280, 282–83 (Tex. Crim. App. 1999) (explaining that trial court had
discretion to stack sentences for any excepted offenses listed in section 3.03
but did not have discretion to stack sentences for offenses not encompassed in
section 3.03).
We sustain Mendoza’s first issue and reform the judgment
to delete the cumulation order.  See LaPorte, 840 S.W.2d at 415 (“An
improper cumulation order is, in essence, a void sentence.”).
D.  Waiver of Constitutional Arguments
Mendoza also argues that the trial court’s stacking
order constitutes cruel and unusual punishment under the United States and
Texas constitutions, but he did not present this argument at trial.  Consequently, he has not preserved this
complaint for appeal.  See Tex. R. App. P. 33.1; Rhoades v. State, 934 S.W.2d 113, 120
(Tex. Crim. App. 1996) (holding cruel and unusual punishment argument under
Texas constitution was waived when appellant failed to object at trial); Curry v. State, 910 S.W.2d 490, 497
(Tex. Crim. App. 1995) (holding cruel and unusual punishment argument under
United States Constitution was waived when appellant never objected on those
grounds at trial); see also Nicholas,
56 S.W.3d at 768 (“The constitutional right to be free from cruel and unusual
punishment may be waived.”).
V.  Improper
Jury Argument
Mendoza’s complaint in his second issue involves the
following arguments made by the State during its closing argument at the
guilt-innocence stage of trial:
 
 
 
[The State]:  Do you know how many
cases we have in Tarrant County or child cases where we have actual evidence of
injuries, of rape like this?  
          
Nearly zero.
 
[Defense counsel]:  Objection to
the form of the argument.
 
THE COURT:  Sustained.
 
[The State]:  I don’t have any
cases like that.
 
[Defense counsel]:  Objection to
the form of the argument, Your Honor.
 
THE COURT:  Sustained.
          
. . . .
 
[The State]:  . . . .  This is not my fault this case took four
days.  This is not my fault we had to go
through all the evidence with the witnesses. 
This is not my fault we had to listen to all the 911 tapes and see those
horrible pictures and embarrassing pictures [of] [J.R.]’s vagina and anal
area.  This is not my fault.  This is his.
 
[Defense counsel]:  Objection.  There’s no evidence of any anal trauma or
pictures in evidence.
          
. . . .
 
THE COURT:  Overrule the
objection.
 
[The State]:  Oh, yeah?  There’s no evidence of anal trauma or vaginal
trauma?  Here it is.  
          In all of their time,
both Dr. Coffman, Donna Wright’s boss, and Donna both told you they have never
seen an injury like this before.  
 
[Defense counsel]: 
Objection.  There’s been no
testimony from Dr. Coffman nor was Dr. Coffman here.
 
THE COURT:  Sustained.
 
[The State]:  Donna Wright told
you she had presented it to her medical director, and as a unit, they got
together, and they’ve never seen this type of injury before.
 
[Defense counsel]:  Object to
using this testimony as evidence.
THE COURT:  Sustained.
 
           . . . .
 
[The State]:  Notice this, because
I’m sitting here trying to think what could have caused that puncture
would.  What?  And it dawned on us.  A reasonable inference from the
evidence.  Look at that knife.  Look at that thumb screw.
 
[Defense counsel]:  Objection,
Your Honor.  There’s been no testimony or
evidence of that.
 
THE COURT:  Overruled.
 
[The State]:  I expected that.
 
[Defense counsel]: 
Objection.  There’s no testimony,
Your Honor.
 
THE COURT:  Sustained.
 
Mendoza argues on appeal that the trial court erred by
not granting a mistrial for the State’s improper arguments during its closing
argument.  Mendoza “concedes that trial
counsel did not object, did not ask for an instruction for the jury to
disregard the inflammatory arguments, and did not move for a mistrial,” but he
argues that the “cumulative, repetitive effect” of the State’s arguments was
unconscionable.     
A.  No Adverse
Ruling 
          The trial court sustained defense counsel’s objections
to five of the complained-of arguments. 
However, defense counsel did not pursue an adverse ruling; that is,
after the court sustained her objections, defense counsel did not seek an
instruction to disregard or request a mistrial.    
To preserve error in prosecutorial argument, a
defendant must pursue his objections to an adverse ruling.  Archie
v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Mathis v. State, 67 S.W.3d 918, 927 (Tex. Crim. App. 2002); see also Tex. R. App. P. 33.1(a)(1).  “The essential requirement is a timely,
specific request that the trial court refuses.”  Young v.
State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).  Even if the error was such that it could not
be cured by an instruction to disregard, the defendant must object and request
a mistrial to preserve the error.  Mathis, 67 S.W.3d at 927.  
Here, because Mendoza did not pursue adverse rulings
on the majority of his objections, any error was not preserved.  See
Archie, 221 S.W.3d at 699; Mathis,
67 S.W.3d at 927.  
B.  Proper Argument
The only objection for which defense counsel obtained
an adverse ruling was her objection to the State’s closing argument about “those
horrible pictures and embarrassing pictures [of] [J.R.]’s . . . anal area.”  The trial court overruled her objection that
there was no evidence or pictures of any anal trauma in evidence.     
To
be permissible, the State’s jury argument must fall within one of the following
four general areas:  (1) summation
of the evidence; (2) reasonable deduction from the evidence;
(3) answer to argument of opposing counsel; or (4) plea for law
enforcement.  Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d 230, 231
(Tex. Crim. App. 1973).  
Here,
Donna Wright, the sexual assault
nurse who had examined J.R., testified about a puncture wound to the area
between J.R.’s vaginal opening and her anus that measured approximately 7
millimeters long.  Wright explained that
the wound would be painful and that she had never seen anything like it in her
ten years as a sexual assault nurse.  During Wright’s testimony, the State
introduced a digital photograph of the puncture wound to J.R.’s anal area.  Thus, the State’s argument was a
proper summation of the evidence, and the trial court properly overruled
defense counsel’s objection.  See Felder, 848 S.W.2d at 94–95; Alejandro, 493 S.W.2d at 231.   
Because
Mendoza did not pursue adverse
rulings on the majority of his objections and because the remaining objected-to
argument was proper, we overrule his second issue.
VI.  Conclusion
Having
modified the judgment of
conviction for indecency with a child-sexual contact in Cause No. 1138470D to
correct a clerical error, having sustained
Mendoza’s first issue and modified the judgments to delete the trial court’s
cumulation order, and having overruled Mendoza’s remaining issue, we affirm the
trial court’s judgments as modified.
 
 
 
SUE
WALKER
JUSTICE
 
PANEL:  GARDNER, WALKER, and GABRIEL, JJ.
 
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
 
DELIVERED:  December 30, 2010
 




[1]See Tex. R. App. P. 47.4.


[2]In
other words, the trial court stacked the sentences in Cause No. 1138470D and in Cause No. 1138471D onto the sentence in Cause
No. 1148082D.


[3]Mendoza
does not specifically argue on appeal that the trial court abused its
discretion by stacking the sentences based on the “same criminal episode”
provisions of section 3.03 (in fact, he contends in his procedural history that
the offenses are from “two separate but similar alleged criminal
episodes”).  But his first issue is that
the trial court abused its discretion by stacking the sentences, and he cites
to section 3.03 within his argument. 
Because we are to liberally construe briefs and because a trial court abuses its discretion by stacking
sentences when the law does not allow for it, we will address this issue as a
“subsidiary question that is fairly included” within Mendoza’s first issue.  Tex. R. App. P. 38.1(f) (“The statement
of an issue or point will be treated as covering every subsidiary question that
is fairly included.”); see Tex. R.
App. P. 38.9 (requiring courts to liberally construe briefs for substantial
compliance with rules); see also LaPorte, 840 S.W.2d at 415 (“An improper cumulation order is,
in essence, a void sentence, and such error cannot be waived.”).


[4]The
State treated the offenses as arising out of the same criminal episode at trial
by filing notice of intent to consolidate pursuant to penal code section
3.03.  On appeal, the State, in essence,
assumes that the offenses are all part of the same criminal episode by relying
on section 3.03 to show that the cumulation order did not constitute an abuse
of discretion, but it does not present argument on this issue.    


