                                                                    ACCEPTED
                                                               13-14-00684-CR
                                                 THIRTEENTH COURT OF APPEALS
                                                       CORPUS CHRISTI, TEXAS
                                                          3/31/2015 8:02:05 AM
                                                              DORIAN RAMIREZ
                                                                        CLERK

        NO. 13-14-00684-CR

   IN THE COURT OF APPEALS        FILED IN
                          13th COURT OF APPEALS
FOR THE THIRTEENTH DISTRICT
                       CORPUSOFCHRISTI/EDINBURG, TEXAS
            TEXAS          3/31/2015 8:02:05 AM
       AT CORPUS CHRISTI    DORIAN E. RAMIREZ
                                         Clerk

        EUGENIO VALDEZ,
                   Appellant,
              v.

      THE STATE OF TEXAS,
                    Appellee.

         On Appeal from the
         th
      377 Judicial District Court
      Of Victoria County, Texas
      Cause No. 14-04-27914-D

 FIRST AMENDED BRIEF FOR THE
        STATE OF TEXAS

       STEPHEN B. TYLER
      Criminal District Attorney
       Victoria County, Texas

     BRENDAN WYATT GUY
  Assistant Criminal District Attorney
        Victoria County, Texas
      205 N. Bridge St. Ste. 301,
     Victoria, Texas 77901-6576
            bguy@vctx.org
            (361) 575-0468
         (361) 570-1041 (fax)
        State Bar No. 24034895

    Attorneys for the State of Texas

ORAL ARGUMENT NOT REQUESTED
                                             TABLE OF CONTENTS

                                                                                                 PAGE (S)

TABLE OF CONTENTS ......................................................................... ii

INDEX OF AUTHORITIES ...............................................................iii-iv

STATEMENT OF THE FACTS .......................................................... 1-2

SUMMARY OF ARGUMENT ............................................................. 2-3

ARGUMENT .......................................................................................... 3-8

            I. The State did not make any reference to Appellant
               not testifying in its opening argument .................................. 3-5

         II. Appellant has waived any claim of error based on
             the prosecution’s opening argument by failing to
             object at trial ............................................................................ 5-8

PRAYER .................................................................................................... 9

SIGNATURE ............................................................................................. 9

CERTIFICATE OF COMPLIANCE ................................................... 10

CERTIFICATE OF SERVICE ............................................................. 11




First Amended Brief of Appellee                        ii
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                             INDEX OF AUTHORITIES


                                      United States Supreme Court Cases

Cockrell v. Texas,
520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed. 2d 548 (1997) ........................ 6


                                                  Texas Cases

Cockrell v. State, 933 S.W. 2d 73 (Tex. Crim. App. 1996) ..................... 6

Cruz v. State, 225 S.W. 3d 546(Tex. Crim. App. 2007) .......................... 4

Garcia v. State, 887 S.W. 2d 862 (Tex. Crim. App. 1994) ...................... 6

Garza v. State, 126 S.W. 3d 79 (Tex. Crim. App. 2004) ......................... 7

Hammock v. State, 46 S.W. 3d 889 (Tex. Crim. App. 2001) .................. 6

Hollins v. State, 805 S.W. 2d 475 (Tex. Crim. App. 1991) ..................... 7

Moore v. State, 999 S.W. 2d 385 (Tex. Crim. App. 1999) ...................... 6

Nowlin v. State, 507 S.W. 2d 534 (Tex. Crim. App. 1974) ..................... 4

Taylor v. State, 947 S.W. 2d 698
(Tex. App.-Ft. Worth 1997, pet. ref’d)................................................... 4

Trevino v. State, 174 S.W. 3d 925
(Tex. App.-Corpus Christi 2005, pet. ref’d) ........................................... 8


                                                 Texas Statutes

TEX. CODE CRIM. PROC. art. 36.01 (West 2007) ............................. 4



First Amended Brief of Appellee                       iii
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                             Texas Rules

TEX. R. APP. 9.4..................................................................................... 10

TEX. R. APP. 33.1..................................................................................... 6




First Amended Brief of Appellee                    iv
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                                NO. 13-14-00684-CR

                                   IN THE COURT OF APPEALS
                             FOR THE THIRTEEN DISTRICT OF TEXAS
                                      AT CORPUS CHRISTI

EUGENIO VALDEZ………..….…………………………………..Appelant

v.

THE STATE OF TEXAS,…..……………………………………...Appellee

                                                    * * * * *

                STATE’S FIRST AMENDED BRIEF ON THE MERITS

                                                    * * * * *

TO THE HONORABLE COURT OF APPEALS:

            COMES NOW, THE STATE OF TEXAS, by and through her Criminal

District Attorney, Stephen B. Tyler, and as Appellee in the above numbered

and entitled cause, and files this the Appellee’s brief showing:

                                             STATEMENT OF THE FACTS

            Appellant was indicted for the offense of aggravated assault on April

17, 2014. [RR-I-6]. Appellant’s case was called for trial on November 3,

2014. [RR-III-1].

            During the State’s opening argument, the prosecutor stated that only

two of the three individuals involved in the incident at issue in the trial could

remember what happened. [RR-IV-12]. This statement did not draw any
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                                        1
objection from the defense. [RR-IV-12]. Further, on in the State’s opening

argument, the prosecutor described how the evidence would show that the

defendant had told the police he did not remember what happened. [RR-IV-

14]. This statement did not draw any objection from the defense. Id.

Further, on in the opening argument the prosecutor then reiterated that the

defendant could not articulate what happened on the night of the offense.

[RR-IV-15]. This statement also did not draw any objection from the

defense. Id.

            During the case in chief, the State called Deputy Isaac Ramirez of the

Victoria County Sheriff’s Office to testify. [RR-IV-112]. Deputy Ramirez

described making contact with the Appellant on the night of the offense.

[RR-IV-117-119].                             Deputy Ramirez also described questioning the

Appellant about the events of that night, and the Appellant continuously

telling him that he could not remember. [RR-IV-120].

            The Appellant was found guilty of the charged offense. [RR-IV-203].

The Appellant was sentenced to 99 years imprisonment. [RR-V-67].

                                     SUMMARY OF THE ARGUMENT

            The State did not make any reference to Appellant not testifying in its

opening argument. The statement that Appellant now objects to was neither

a direct nor implied comment on the Appellant not testifying. Rather the
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                                         2
statement was permissible opening statement as it was reference evidence

that the State would present during its trial.

             Furthermore, Appellant did not make any objection to the State’s

opening argument at trial. Accordingly, Appellant has waived any claim of

error related to that argument. Nor is there any reason to change existing

Texas law which requires a timely, specific objection in order to preserve

appeal on claims of improper prosecutorial comments. The existing Texas

law on that subject is a sensible standard that best balances the interest of

efficient judicial administration with fairness to all parties and thus there is

no reason to change that law.

                                             ARGUMENT

      I. The State did not make any reference to Appellant not testifying
         in its opening argument.

            Appellant’s sole claim of error is to allege that the State made a

reference to his not testifying in the State’s opening argument. This claim

cannot be supported by the record. [RR-IV-12-16].

             A prosecutorial comment amounts to an impermissible comment on a

defendant’s failure to testify only if, when viewed from the jury’s

standpoint, the comment is manifestly intended to be, or is of such character

that a typical jury would naturally and necessarily take it to be a comment on


First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                                3
the defendant’s failure to testify. Cruz v. State, 225 S.W. 3d 546, 548 (Tex.

Crim. App. 2007). Moreover, it is not enough that the objected to language

might be construed as an implied or indirect allusion to the defendant not

testifying. See Nowlin v. State, 507 S.W. 2d 534, 536 (Tex. Crim. App.

1974). The objected to remark must either have necessarily referred to the

defendant not testifying or at least called the jury’s attention to the absence

of evidence that only the testimony from the defendant could have provided.

Id.

            In the present case the State’s opening argument made no reference to

the defendant not testifying. [RR-II-12]. Nor did the objected to statement

make reference to evidence that only the defendant could provide.             Id.

Instead the statement clearly referred to relevant evidence that was going to

be provided by a State witness, Deputy Isaac Ramirez, who questioned the

Appellant on the night of the offense and was told by the Appellant that he

did not remember what happened. [RR-IV-14, 120]. Describing evidence

that the State intends to offer at trial is perfectly proper opening argument.

The State has a statutory right in opening argument to inform the jury of the

facts which are expected to be proved by the State in support of its case. See

TEX. CODE CRIM. PRO. art. 36.01(a)(3); Taylor v. State, 947 S.W. 2d

698, 706 (Tex. App.-Ft. Worth 1997, pet. ref’d). Nor is it improper for the
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                             4
State to make the jury aware of what the Appellant told police on the night

of the offense. Such evidence is obviously relevant and has nothing to do

with whether the Appellant will ultimately decide to testify at trial. Nor can

it even be logically inferred that just because a defendant told police that he

did not remember what happened that that means he will not be testifying.

(Even without memory of the actual night in question, a defendant could still

be called upon to testify about other potentially relevant factors such as the

defendant’s own character or the character of or potential sources of bias in

the State’s witnesses, so informing the jury that the Appellant did not

remember what happened does not even indirectly suggest that the Appellant

would not be testifying.)

            The State’s opening argument did nothing but inform the jury of

relevant facts that the State intended to prove (and in fact did later admit) at

trial. Thus the argument was proper opening argument and there was no

error.

    II. Appellant has waived any claim of error based on the
        prosecution’s opening argument by failing to object at trial.

           Furthermore, even if the State’s opening argument was deemed to

include some kind of reference to Appellant electing not to testify, the

Appellant would still not be entitled to any relief because he failed to make

First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                             5
an objection at trial on this issue and thus has waived any claim for appellate

review.

            In order to preserve error for appellate review, the complaining party

must present a timely and specific objection to the trial court, and obtain a

ruling. TEX. R. APP. P. 33.1(a). This applies even to a claim that the

prosecution impermissibly commented on a defendant’s decision not to

testify.           See Cockrell v. State, 933 S.W. 2d 73, 89 (Tex. Crim. App.

1996)(holding that defendant waived appellate review of his claim that the

prosecutor impermissibly commented on defendant’s failure to testify by not

objecting at trial), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed. 2d

548 (1997); Garcia v. State, 887 S.W. 2d 862, 877 (Tex. Crim. App.

1994)(holding that no error was preserved when the defendant failed to

object to the State commenting on the defendant not testifying), abrogated

in part on other grounds by Hammock v. State, 46 S.W. 3d 889, 892-893

(Tex. Crim. App. 2001).                      This is because in all but the most blatant

instances, an instruction to disregard from the trial court will cure the

damage from an improper comment on a defendant not testifying. See

Moore v. State, 999 S.W. 2d 385, 405 (Tex. Crim. App. 1999). As such,

since the defendant can cure any error from an improper prosecutorial

comment by seeking relief from the trial court, it is the defendant’s
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                                    6
responsibility to seek that relief at trial. If they fail to do so they waive any

claim of error on that issue for appeal.

           In the present case the Appellant did not make any sort of objection to

the prosecutor’s statement in opening argument about only two of the three

people involved in the incident remembering what happened. [RR-IV-12].

Therefore Appellant has waived any claim of error on this issue.

         Nor is there any compelling reason to change long standing Texas law

on this issue. The requirement for timely, specific objections exists for very

sensible reasons. The best way to insure an efficient, fair trial process for all

parties is to resolve any errors at the lowest level of court possible. Timely

objections are critical for this because they give the trial court the

opportunity to cure any error that might have occurred. See Hollins v. State,

805 S.W. 2d 475, 376 (Tex. Crim. App. 1991).                Additionally, raising

objections at the trial level also gives the opposing party that opportunity to

remove the objection themselves or perhaps find an alternate, non-

objectionable way of introducing the evidence they hope to present. See

Garza v. State, 126 S.W. 3d 79, 82 (Tex. Crim. App. 2004). Therefore it is

only logical to require objections to be made at the trial level in order to

preserve issues for appellate review. Nor is the process for preserving

potential error unduly burdensome. All a party has to do is: 1) let the trial
First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                             7
court know what they want, 2) explain why they think they are entitled to

that relief, and 3) explain what they want and why they deserve it with

sufficient clarity for the judge to understand them at a time when the judge is

in a proper position to do something about the issue. See Trevino v. State,

174 S.W. 3d 925, 927 (Tex. App.-Corpus Christi 2005, pet. ref’d). As such

existing Texas law on this principle is sound and should be maintained,

which means that Appellant has waived any error on this claim.




First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                             8
                                              PRAYER

            WHEREFORE, PREMISES CONSIDERED, the State prays that this

Honorable Court affirm the judgment of the trial court.

.

                                             Respectfully submitted,


                                             STEPHEN B. TYLER
                                             CRIMINAL DISTRICT ATTORNEY

                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139


                                             ATTORNEYS FOR THE APPELLEE,
                                             THE STATE OF TEXAS




First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                                   9
                                     CERTIFICATE OF COMPLIANCE

            In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I,

Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria County,

Texas, certify that the number of words in Appellee’s First Amended Brief

submitted on March 31, 2015, excluding those matters listed in Rule 9.4(i)(1)

is 1,583.



                                             /s/ Brendan W. Guy
                                             Brendan W. Guy
                                             Assistant Criminal District Attorney
                                             SBN 24034895
                                             205 North Bridge Street, Suite 301
                                             Victoria, Texas 77902
                                             E-mail: bguy@vctx.org
                                             Telephone: (361) 575-0468
                                             Facsimile: (361) 576-4139




First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                                  10
                                             CERTIFICATE OF SERVICE

            I, Brendan Wyatt Guy, Assistant Criminal District Attorney, Victoria

County, Texas, certify that a copy of the foregoing first amended brief has

been served on W. A. (Bill) White, P.O. Box 7422, Victoria, Texas, 77903,

Attorney for the Appellant, Eugenio Valdez, by depositing same in the

United States Mail, postage prepaid on the day of March 31, 2015.



                                                   /s/ Brendan W. Guy
                                                   Brendan W. Guy
                                                   Assistant Criminal District Attorney
                                                   SBN 24034895
                                                   205 North Bridge Street, Suite 301
                                                   Victoria, Texas 77902
                                                   E-mail: bguy@vctx.org
                                                   Telephone: (361) 575-0468
                                                   Facsimile: (361) 576-4139




First Amended Brief of Appellee
Victoria County Criminal District Attorney
No. 13-14-00684-CR
                                                        11
