Parra v. The State Of Tex.
| Decision Date | 14 July 2010 |
| Docket Number | No. 08-09-00059-CR,TC# 20060D03360,08-09-00059-CR |
| Court | Texas Court of Appeals |
| Parties | RAUL PARRA, Appellant, v. THE STATE OF TEXAS, Appellee. |
Appeal from the 409th District Court of El Paso County, Texas
O P I N I O N
Appellant, Raul Parra, was convicted of aggravated sexual assault of a child and sentenced to life imprisonment. In two issues on appeal, Appellant claims the trial court failed to follow the procedures of article 36.27 and that a juror engaged in misconduct. For the reasons that follow, we affirm.
The factual recitations of the offense are well known to the parties, and we need not recite them here in detail. An abbreviated recitation shows that on July 18, 2006, Appellant was invited to a Father's Day dinner at the six-year-old victim's apartment. Appellant's son and the victim later went to Appellant's apartment, which was in the same complex, to watch a movie in the living room. During the movie, Appellant took the victim to his bedroom, laid her on the bed, pulled her pants and underwear down, and contacted his penis with her anus. As the molestation continued, Appellant's wife walked in, and an argument ensued, ending with Appellant's flight from the apartment. The police were called, and Appellant was found nearby at a convenience store.
Appellant's first issue contends that the trial court, during the punishment stage, committed error by failing to inform him of a jury note before responding to the same in violation of article 36.27, and as a result, he was not given the opportunity to prevent the trial court from "coercing" the jury, through its response, to return a life sentence.1 The State responds that Appellant's complaint is not preserved for our review.
During the second day of punishment deliberations, four notes were sent to the judge. The first, at 10:07 a.m., requested a short break as the jurors were "at a dead end." The second, at 1:16 p.m., requested a dictionary, and the third, at 1:34 p.m., stated that some jurors wanted to leave. Nothing in the record indicates that the judge responded to these notes. However, at 2:33 p.m., the jury informed the judge that two jurors wanted to "walk out," wanted "to talk to the judge," and wanted "to know the consequences." The note indicated that the jury was "still deliberating," but those two jurors did "not want to hear anymore." In response, the judge, after obtaining the presence of Appellant and his counsel, called the jury into the courtroom and prior to informing the parties as to the contents of the note or how the court would respond, instructed the jury as follows:
Appellant did not object to the judge's comment.
At 2:58 p.m., the jury informed the court that they wished to continue deliberating, and at 3:20 p.m., the jury reached a unanimous verdict. When the trial court asked if there was any reason why the sentence should not be imposed, Appellant stated that there was not.
Later, Appellant filed a motion for new trial complaining for the first time of the trial court's response to the jury note. According to the motion, the trial court did not inform him of the jury note, he could not have foreseen the instructions that were about to be given to the jury, and the court committed egregious error by threatening to place the jury in the county jail. A hearing ensued, and Appellant's counsel claimed that when the note was received, the judge summoned him to the courtroom without explaining why, and did not show him the jury's note until after the judge responded to the jury. The prosecutor admitted that the note was not shown to the parties until after the instructions were given but asserted that the judge, prior to responding to the note, did tell the parties that there was a jury note and that the court was going to address the jury. The prosecutor
further noted that Appellant did not object, either when the judge stated he was going to address the jury or after the judge made the comments. The judge could not recall whether he informed the parties of his intent before bringing the parties into the courtroom, but he did remember making the parties aware of the note before responding to it. When the judge asked why Appellant did not object if he thought his actions were so egregious, Appellant responded that when it was happening, he did not know what was going on.
Initially, we address the State's argument that Appellant's issue is mulitfarious and therefore waived. A multifarious point embraces more than one specific ground in a single issue and thus presents nothing for appellate review. Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex. Crim. App. 1995); Stults v. State, 23 S.W.3d 198, 205 (Tex. App.-Houston [14th Dist.] 2000, pet. refd).
According to the State, Appellant's first issue appears to be two-fold, that is, that Appellant is complaining of the trial court's failure to follow the statutory procedure upon receiving a jury note, and of the content of the trial court's response to the jury. We disagree. Appellant phrased his issue as "whether the trial court erred by failing to notify defense counsel of the jury's note and, thus, failed to allow defense counsel an opportunity to suggest a response to the jury which was not coercive in nature." He then argues, citing article 36.27, that the "jury's note was not provided to defense counsel for an opportunity to suggest a less-coercive instruction," the "law required the court to inform defense counsel of the contents of the note," the "trial court did not know that it had a legal obligation to inform defense counsel of the note," and This is a complaint that the trial court failed to follow the
procedures outlined in article 36.27, and we need only address the content of the comment if we find error. Therefore, we find a single point of error alleging failure to follow statutory procedures.
Conceding that the trial court failed to follow the procedures outlined in article 36.27, the State also argues that Appellant failed to preserve his issue for our review as he did not timely object to the court's fallacy. Preservation of error is a systemic requirement that we must review. See Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997). If an issue has not been preserved for appeal, we cannot address the merits of that issue. See Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009) (citing Haley v. State, 173 S.W.3d 510, 515 (Tex. Crim. App. 2005)). An objection that the trial court failed to follow the procedures in article 36.27 is required to preserve such error for our review. See Word, 206 S.W.3d 651-52; Hawkins v. State, 660 S.W.2d 65, 81 (Tex. Crim. App. 1983); Verret v. State, 470 S.W.2d 883, 887 (Tex. Crim. App. 1971); Boatwright v. State, 933 S.W.2d 309, 311 (Tex. App.-Houston [14th Dist.] 1996, no pet.); Harris v. State, 736 S.W.2d 166, 166-67 (Tex. App.-Houston [14th Dist.] 1987, no pet.); Morales v. State, No. 08-06-00067-CR, 2009 WL 223446, at *6-7 (Tex. App.-El Paso Jan. 30, 2009, pet. refd) (). Moreover, that objection must be made as soon as the grounds for the objection is apparent. See Tex. R. App. P. 33.1; Lagrone v. State, 942 S.W.2d 602, 618 (Tex. Crim. App.), cert. denied, 522 U.S. 917, 118 S.Ct. 305, 139 L.Ed.2d 235 (1997).
Although we do not condone the trial judge's actions in failing to follow the procedural mandates of article 36.29, nor do we approve of the content of his comments to the jury, we are constrained to hold that any error is not preserved for our review. See Ford, 305 S.W.3d at 532. Appellant did not object prior to the trial court's address to the jury despite being aware that there was a jury note. Nor did Appellant object after the trial court made his comments to the jury.
Further, when the jury returned to the courtroom with a verdict, Appellant made no objections, nor did he object when the trial court asked if there was any reason why the sentence should not be imposed. Rather, Appellant waited until he filed a motion for new trial to raise the...
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