Rodriguez v. State
| Decision Date | 02 July 2018 |
| Docket Number | No. 07-16-00280-CR,07-16-00280-CR |
| Citation | 553 S.W.3d 733 |
| Parties | Jose RODRIGUEZ, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Lauren Murphree, for Appellee.
Lorna McMillion, for Appellant.
Before CAMPBELL, PIRTLE and PARKER, JJ.
Appellant, Jose Rodriguez, was convicted following a jury trial of assault for causing bodily injury to Delia Salazar, a person with whom he had a dating relationship or who was a member of his household.1 During the punishment phase of his trial, Appellant plead "true" to two prior felony convictions and he was sentenced by the trial court to confinement for seventy-five years.2
Appellant raises ten issues on appeal. He asserts the trial court erred by (1) granting an amendment to the indictment without requiring that the State give him the applicable statutory notice, (2) admitting unduly prejudicial testimony that Appellant pushed his mother during the incident, (3) admitting extraneous offenses related to another woman, (4) permitting the State to introduce evidence of extraneous offenses without proper notice, and (5) permitting the State to offer evidence without the statutory acknowledgment required by article 39.14(j) of the Texas Code of Criminal Procedure. See TEXAS CODE CRIM. PROC. ANN. art. 39.14(j) (West 2018). He also asserts that his counsel was ineffective (6) during the cross-examinations of two witnesses, (7) by failing to preserve error regarding jurors challenged for cause, and (8) by failing to investigate State witnesses or alternative sources for Salazar’s injuries. He further asserts (9) the trial court erred by failing to instruct the jury on the lesser included offense of misdemeanor assault and that (10) cumulative error warrants reversal. We affirm.
In 2015, an indictment issued alleging that on or before June 7, 2014, Appellant intentionally, knowingly, or recklessly caused bodily injury to Salazar, a person with whom Appellant was in a dating relationship or who was a member of his household (as described by sections 71.0021(b) and 71.005 of the Texas Family Code ) by striking her with his hand or with a hard object.3 On June 16, 2016, four days before trial, the State amended its notice of extraneous offenses to include any and all matters regarding an assault against another woman, Sylvia Cruz, that occurred on or about May 31, 2016, and an assault/theft against Cruz that occurred on or about February 7, 2016.
The State’s evidence at trial4 established that on June 7, 2014, Appellant and his girlfriend, Salazar, were living with his mother, Josefa Rodriguez. Salazar had been living there since April or May. She shared a bedroom with Appellant, slept with him, and did household chores such as laundry, cleaning, and dishes. They cooked meals together and she believed they were in a dating relationship.
On June 7, 2014, Appellant became angry when Salazar left the dinner table and rinsed her dishes without picking up his mother’s plate. Appellant punched her in the face, flipping her chair backwards. She fell and hit her head against the wall. Josefa attempted to intervene, but Appellant hit Salazar in the face again. Salazar got up from the floor and started running but Appellant grabbed her by the hair, pulled her down, and resumed his attack. She was crying and dizzy from being hit. When his mother came between them to stop the assault, Appellant again pushed her away. His mother then ran to a neighbor’s house as Appellant continued beating Salazar. Appellant subsequently told her to take a shower. When she came out of the shower, she was dizzy and felt weak. Appellant told her to sit down on the sofa and to be calm.
In the meantime, Josefa arrived at her neighbor’s house upset and asked her to call the police. Officer Glen Osborn responded. In his report, he described Appellant as arrogant while Salazar was cowering on the sofa. Officer Cecil Garcia took a statement from Josefa who told him that her son was in her house assaulting his girlfriend. After meeting Appellant, the officers became concerned for their own safety because Appellant was standoffish and aggressive.
Officer Garcia photographed Salazar’s injuries and described her as having a black eye with swelling around her left eye and cheekbone, multiple bruising to areas of her face, and a lump on the top of her forehead above her right eye about the size of a quarter. Salazar was taken to a hospital and Appellant was placed under arrest. Salazar feared that when Appellant was released from custody, he would come back and hurt her. A physician assistant at the hospital testified that in addition to the injuries described by Officer Garcia, Salazar had a broken nose.
Based on the evidence presented, including Appellant’s stipulation regarding his prior conviction for assault against a person with whom his relationship to or association with was described by sections 71.0021(b), 71.003, or 71.005 of the Texas Family Code, the jury returned a verdict of guilty. The issue of punishment was, however, decided by the court.
During the punishment phase of trial, the State’s evidence focused on testimony from Salazar and two past victims of Appellant’s abuse and assaultive behavior. In addition to the facial injuries Salazar suffered in the assault in question, she also suffered wounds to her legs from a beating by Appellant with a belt buckle only a few days before. Sylvia Cruz additionally testified that she had previously dated Appellant off and on for ten years and that he had beaten her about the face and head and the back of her thighs and legs with a shoe. Finally, Mary Helen Rodriguez, Appellant’s former wife, described a beating she suffered at Appellant’s hands in the late 1990s that resulted in his imprisonment.
Specifically, Cruz described three beatings in early to mid-2016 where (1) Appellant threw her around an apartment, (2) beat her in a car until she had bruises on her back and front, and (3) repeatedly hit her face and back in a car causing bodily bruising and two black eyes and requiring her to miss three days of work.5 Regarding this third beating, Officer Jared Dalton of the Lubbock Police Department described finding Cruz in the middle of the road with cuts and bruising to her face and a large goose egg above her left eye. The trial court also admitted Officer Dalton’s photographs of Cruz’s injuries from this third beating.
Appellant’s evidence during the punishment phase focused on mitigation. The defense presented four family members—Appellant’s mother, sister, and two brothers. Their testimony centered primarily on Appellant’s early childhood and home life. During this time, his father abused and assaulted Josefa. Alcohol was a problem in the home and his father would become violent after drinking heavily. The violence and drinking occurred in the presence of Appellant and his family members.
On June 13, 2016, the State filed its motion to amend the second enhancement paragraph in the indictment by changing the date of conviction of the offense of aggravated assault with a deadly weapon from "July 14, 1999" to "July 1, 1999." The State’s motion was heard on June 14. During the hearing, Appellant requested a ten-day continuance pursuant to article 28.10(a). See TEX. CODE CRIM. PROC. ANN. art. 28.10(a) (West 2006). Aside from requesting the ten-day period, Appellant made no showing of necessity or prejudice. The trial court denied Appellant’s request and orally granted the State’s motion to amend.6 The trial court issued a written order on June 21.
Appellant asserts the trial court erred by granting the State’s motion to amend the indictment the day before guilt/innocence proceeding commenced and denying his motion for a continuance to allow him ten days to respond to the amendment. See art. 28.10(a).7 We disagree.
"The granting or denying of a motion for continuance is within the sound discretion of the trial court." Renteria v. State , 206 S.W.3d 689, 699 (Tex. Crim. App. 2006). Accordingly, we review a trial court’s ruling on a motion for continuance based upon an abuse of discretion standard. Gallo v. State , 239 S.W.3d 757, 764 (Tex. Crim. App. 2007), cert. denied , 553 U.S. 1080, 128 S.Ct. 2872, 171 L.Ed. 2d 813 (2008). A trial court does not abuse its discretion so long as its decision is within the zone of reasonable disagreement and is correct under any theory of law applicable to the case. Winegarner v. State , 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Further, "[a] bare assertion that counsel [does] not have adequate time to interview the State’s potential witness does not alone establish prejudice." Gallo , 239 S.W.3d at 764 (citing Heiselbetz v. State , 906 S.W.2d 500, 512 (Tex. Crim. App. 1995) ).
Here, the trial court committed no error by denying Appellant’s request for a ten-day continuance pursuant to article 28.10(a). While prior convictions used for enhancement purposes must be plead in some form, they need not be plead in the indictment. Johnson v. State , 214 S.W.3d 157, 158 (Tex. App.—Amarillo 2007, no pet.) (citing Villescas v. State , 189 S.W.3d 290, 292-93 (Tex. Crim. App. 2006) ). "Since enhancement paragraphs need not be pled in the indictment, it logically follows that they are unessential to the validity of the indictment and comparable to surplusage for purposes of article 28.10." Id. As a result, modifying the date in the enhancement paragraph here did not implicate article 28.10, and therefore, the trial court did not abuse its discretion by denying Appellant’s motion for a continuance. Id. at 158-59. See also Pelache v. State , 324 S.W.3d 568, 577 (Tex. Crim. App. 2010). Accordingly, Appellant’s first issue is overruled.
By his second issue, Appellant asserts the trial court erred by allowing Salazar to testify, during the State’s guilt/innocence...
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