Hernandez v. State, No. 04-09-00544-CR (Tex. App. 5/26/2010)
| Decision Date | 26 May 2010 |
| Docket Number | No. 04-09-00544-CR.,04-09-00544-CR. |
| Parties | ALFREDO HERNANDEZ, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Appeal from the 229th Judicial District Court, Starr County, Texas, Trial Court No. 08-CRS-162, Honorable Alex William Gabert, Judge Presiding.
AFFIRMED.
Sitting: Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice, Marialyn BARNARD, Justice.
A jury found appellant Alfredo Hernandez guilty of criminal solicitation of a minor and assessed punishment at ten years' confinement. The trial court suspended the sentence and placed appellant on ten years' community supervision. On appeal, appellant argues (1) the trial court lacked jurisdiction, and therefore, his conviction is void, (2) the trial court erred in refusing to admit into evidence the complainant's MySpace page, and (3) there is insufficient corroboration to establish his guilt. We affirm.
Appellant's first cousin's daughter, B.M., is the complainant in this case. The State alleged appellant solicited sexual acts from B.M. on Friday, April 18, 2008, during a school-sponsored walk-a-thon. Prior to the walk-a-thon, appellant—a police officer—had several encounters with B.M., including stopping in his patrol car to ask her how she was doing in school, giving her a ride to the store, giving her a ride home from the pool, and asking her about her sexual activity with her boyfriend. On the evening of the walk-a-thon, B.M.—a seventh grade student—walked with several of her friends to the walk-a-thon. Along the way, another girl in a car tried to run the girls over. When the girls arrived at the school, B.M. reported the car incident to appellant. Appellant warned her not to get into a fight. Later, appellant told B.M. and several of her friends that he wanted to talk to B.M. alone. According to B.M., appellant asked her if she would give him a "hand job" and a "blow job," and he asked to "put it in [her] for 15 minutes" in exchange for money. Initially appellant offered her $100, but B.M. testified "he went [up to] $200." M.A.S., B.M.'s boyfriend at the time, testified he saw appellant talking to B.M. at the walk-a-thon and B.M. The conversation lasted for five to ten minutes. When B.M. and appellant finished talking, B.M. returned and sat on a bench with her friend, S.S. Later, M.A.S. asked B.M. what appellant told her because "she looked unhappy while she was talking to him." B.M. responded that she would tell him later.
S.S. and B.M. left the walk-a-thon together, stopped by S.S.'s house, and eventually went to B.M.'s aunt's house. While there, B.M. told S.S. what appellant said to her at the walk-a-thon. S.S. stated B.M. was crying, and S.S. told her that she needed to report the solicitation. The two then met M.A.S. and told him what had happened. S.S. also testified B.M. told her that appellant had offered to pick her up at night at any time, and on the night of the walk-a-thon, appellant offered to give B.M. a ride to her father's house the next day. The following Monday, B.M. reported the solicitation to Hilda Moreno, the school counselor. Moreno notified the principal of the school and Child Protective Services ("CPS").
Irasema Sanchez, B.M.'s step-mother, testified she went with B.M. to the police station to report the solicitation. While there, she received a phone call from appellant who told her to "talk to [B.M.] and remind her that we were family, . . . for her to leave everything the way it was, [and] that he had offered her a hundred dollars but it was for her quinceanera dress." She stated appellant then asked to talk to B.M.'s father (appellant's cousin), B.M.'s father put the phone on speaker, and appellant told him the same thing.
Eduardo Enriquez, a special investigator for CPS, testified he spoke with appellant one week after the solicitation. Appellant agreed to give an oral statement and made it clear to Enriquez that he and B.M. were related and that he was trying to keep her out of trouble because she was getting into fights and running away. Appellant told Enriquez that B.M. had run away several times in the past and her mother was having a lot of problems with her. Appellant, however, could not produce any documentation reflecting B.M. was troubled or had ever run away, nor did Enriquez's investigation reveal any reports of B.M. having run away. When asked during the interview to describe B.M. physically, appellant stated, "Oh yeah my niece, she's a very beautiful girl." He stated she had "beautiful green eyes," and she was "white complected, guerita." Enriquez testified that appellant's demeanor changed when he began to describe B.M.— Appellant commented that most girls in the area were dark complected, but B.M. was "guerita."
Jovita Shives, a CPS investigator, testified she was present during appellant's interview with Enriquez. According to Shives, appellant said he talked to B.M. on two occasions the evening of the walk-a-thon: the first time he just said hello; the second time she was with a group of friends when appellant stopped her and insisted on speaking to her alone regarding a fight. Appellant offered to pick B.M. up after the walk-a-thon to look for the vehicle that tried to run her over. After learning of the solicitation allegations, appellant stated he contacted B.M.'s grandmother and asked her to arrange a meeting between himself and B.M.'s father. He asked B.M.'s grandmother to tell B.M. to tell the truth. When asked to describe B.M., appellant said she was a problematic child who ran away at three o'clock in the morning and who was always getting into fights. He stated she was "nothing but trouble." When asked to describe her physically, appellant When asked specifically about oral sex, he commented that "he wished every man could have it more often, blow jobs."
Pedro Castillo, a sergeant in the police department at the Rio Grande City school district, testified he also interviewed appellant. Appellant stated he talked to B.M. the night of the walk-a-thon, offered to file a report about the car incident, and offered her transportation if she needed it. Castillo, however, testified no report had ever been filed and no referrals had been made regarding B.M. running away.
B.M.'s mother testified she never had a reason to report B.M. as a runaway, B.M. had never been referred to the juvenile authorities, and there were no complaints regarding B.M. in her school activities.
In his first, second, and third issues on appeal, appellant argues his conviction is invalid because his indictment was not properly returned and presented. Appellant points out he was indicted by a grand jury empaneled by the 381st Judicial District Court ("381st"); his indictment, however, was filed in the 229th Judicial District Court ("229th")—the court in which appellant was later tried and convicted. Appellant asserts his case was not "officially transferred" from the 381st to the 229th; therefore, the 229th did not have jurisdiction over the matter, and his conviction is void.
Criminal district courts have original jurisdiction in felony criminal cases. Tex. Code Crim. Proc. Ann. art. 4.05 (Vernon 2005). In order to vest a court with jurisdiction of a criminal action, a grand jury must present an indictment or information charging a person with the commission of an offense. Tex. Const. art V, § 12(b); see Tex. Code Crim. Proc. art. 20.21. Although a specific district court may impanel a grand jury, it does not necessarily follow that all cases returned by that grand jury are assigned to that court. Bourque v. State, 156 S.W.3d 675, 678 (Tex. App.-Dallas 2005, pet. ref'd). A case assigned to a district court other than the district court to which the grand jury presented the indictment amounts only to a procedural irregularity, not a jurisdictional defect. See Tamez v. State, 27 S.W.3d 668, 671 (Tex. App.-Waco 2000, pet. ref'd) (); see also State v. Smith, 957 S.W.2d 163, 164-65 (Tex. App.-Austin 1997, no pet.) (indictment returned by Runnels County grand jury but filed in Tom Green County district court should have been challenged before entry of guilty plea); see also Mosley v. State, 172 Tex. Crim. 117, 120, 354 S.W.2d 391, 393-94 (1962) (). An objection to a procedural irregularity should be raised in a pretrial motion. Tamez, 27 S.W.3d at 671.
Here, appellant's indictment reflects that it was presented to the 381st by a grand jury empaneled by the 381st: "THE GRAND JURY OF STARR COUNTY, TEXAS, duly selected, empaneled, sworn, charged, and organized at the April 2008 TERM of the 381st District Court for Starr County, upon their oaths present to said Court . . ." (emphasis added). The indictment then charges appellant with criminal solicitation of a minor, a felony offense. Therefore, the indictment was properly presented to vest the 381st with jurisdiction of appellant's cause, and any objection to proceeding in the 229th—a procedural irregularity—should have been raised in a pretrial motion. Appellant, however, did not complain to the trial court about proceeding in...
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