Opinion filed July 23, 2009




                                              In The


   Eleventh Court of Appeals
                                            __________

                                     No. 11-06-00036-CR
                                          ________

                              JOHNNY RAY OCON, Appellant

                                                 V.

                                STATE OF TEXAS, Appellee


                              On Appeal from the 70th District Court

                                       Ector County, Texas

                                 Trial Court Cause No. A-31,766


                 MEMORANDUM OPINION ON REMAND
       Johnny Ray Ocon appeals his conviction by a jury of aggravated sexual assault of a child.
The jury assessed his punishment at life imprisonment in the Texas Department of Criminal Justice,
Institutional Division. We originally reversed the judgment of conviction in this case, holding that
the trial court abused its discretion in overruling Ocon’s motion for mistrial on the grounds that he
was prejudiced when one juror overheard another juror speaking disparagingly of Ocon to another
person over a cell phone. The Texas Court of Criminal Appeals reversed our judgment and
remanded this case so that we might consider Ocon’s other points of error. In three other points,
Ocon urges the following: (1) the trial court erred in failing to allow the defense to examine the
complainant regarding animosity between his mother and Ocon; (2) the trial court erred in refusing
to permit Ocon to present testimony by a witness who would testify about hostility between the
complainant’s mother and Ocon; and (3) the trial court abused its discretion by denying Ocon a new
trial for prosecutorial misconduct in failing to timely disclose potentially exculpatory evidence. We
affirm.
          Ocon insists in Point Two that the trial court abused its discretion by failing to allow the
defense to examine the victim regarding animosity between the complainant’s mother and Ocon.
The complainant testified before the jury that he had previously heard arguments between Ocon and
his mother. He said that they got into a fight a long time ago, before any of this ever happened.
When the complainant started to elaborate, counsel for the State objected on the basis of relevance.
At a bench conference, Ocon’s counsel told the court that he was trying to show whether the
complainant remembered that Ocon and his mother had a fight a long time ago. He also told the
court that he was just trying to find out if the complainant knew that his mother did not like Ocon.
When Ocon’s counsel assured the court that he was not looking to dig into it, the court replied,
“Okay. Well, then let’s move on.” Ocon’s counsel replied, “Okay.” Ocon’s counsel then shifted
to a different line of questioning. We note that the trial court did not sustain the objection by counsel
for the State. The trial court directed Ocon’s counsel to “move on” after Ocon’s counsel had told
the court what he was wanting to assert and that he was not looking to dig into it. If one assumes
that the trial court’s direction to “move on” was a directive that Ocon’s counsel not present further
testimony about hostility between Ocon and the complainant’s mother, we note that Ocon’s counsel
made no objection to that directive. Further, we note that Ocon did not make a bill of exception, so
that we do not know what testimony the complainant would have given had he testified further on
this subject. We hold that no error was preserved and that, even if it were, there is no basis, in the
absence of a record as to what the complainant would have testified had this line of questioning been
pursued, upon which to find that any error by the trial court affected Ocon’s substantial rights.
TEX . R. APP . P. 33.1(a), 44.2(b). We overrule Point Two.
          In Point Three, Ocon urges that the trial court abused its discretion by not permitting him to
present testimony by a witness who could testify about hostility between the complainant’s mother


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and Ocon. Nicole Hincent, Ocon’s niece, testified that the complainant’s mother lived in a home
owned by Ocon’s mother and that she was evicted from that home. After counsel for the State
objected, the trial court held a bench conference. At the bench conference, Ocon’s counsel sought
to show that Ocon and his mother had evicted the complainant’s mother for not paying and that this
was relevant if it were shown that the complainant saw an opportunity to blame someone whom his
mother disliked. The trial court found that the proposed testimony was not relevant. Subsequently,
Hincent testified before the jury that the complainant’s mother had animosity toward Ocon.
       At a subsequent offer of proof, Hincent testified that the complainant’s mother called Ocon
a faggot, that they lived in a house owned by Ocon’s mother, that the complainant’s mother and
Ocon got into arguments over nonpayment of the rent, and that Ocon had her evicted from the house.
She said that the complainant’s mother was angry about the eviction. She did not testify that the
complainant was aware of any of this. In view of the absence of any testimony that the complainant
was aware of the facts outlined in Hincent’s proposed testimony, we agree with the trial court’s
ruling that the testimony was irrelevant. We, therefore, hold that the trial court did not abuse its
discretion in denying Ocon the opportunity to present this testimony before the jury. We overrule
Point Three.
       Ocon contends in Point Four that the trial court abused its discretion in denying his motion
for new trial based on prosecutorial misconduct in failing to timely disclose potentially exculpatory
evidence. Ocon filed a motion for new trial on November 22, 2005, alleging as its only basis that
the verdict was contrary to the law and the evidence. Previously, on November 17, 2005, just prior
to the hearing on punishment, counsel for Ocon told the court that “we have to move for a mistrial”
because a State’s witness had recanted his testimony and told the State’s counsel that the
complainant had told him that he was lying. Ocon’s counsel complained that State’s counsel failed
to disclose that to him. The State’s counsel assured the court the witness had not said the
complainant had told him he was lying. The trial court interrupted a statement Ocon’s counsel was
making to tell him, “You may have a Motion for New Trial.” After further discussion, the trial court
said, “All right. Well, then I guess what we’ll have to do is take up the issue on a motion for new
trial, if there is some other kind of evidence like that.” Just before closing at the punishment phase,
Ocon’s counsel presented a bill with respect to the testimony of the State’s witness to whom the


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complainant was supposed to have said he was lying. The witness testified that he had previously
made an accusation against Ocon but had recanted it. The witness said that the complainant told him
that he was going to “copy” him by making an accusation against Ocon. No formal motion for new
trial based upon prosecutorial misconduct was ever filed, nor was there any hearing on the motion
for new trial. There is no showing that the trial court denied Ocon a hearing on his motion for new
trial. The motion was overruled by operation of law. Inasmuch as Ocon never presented a motion
for new trial based on prosecutorial misconduct and never obtained a hearing on the motion that was
filed, we hold that the trial court did not abuse its discretion by denying Ocon a new trial because
it was denied not by the trial court, but by operation of law. Because the trial court did not rule on
the motion and because there is no showing that the trial court refused to rule on the motion or that
Ocon objected to any such refusal, nothing is preserved for review. See Rule 33.1(a)(2). We
overrule Point Four.
       The judgment is affirmed.


                                                                                PER CURIAM


July 23, 2009
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Hill, J.1




       1
           John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.

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