Sanchez v. The State Of Tex., 13-06-00564-CR

CourtCourt of Appeals of Texas
Writing for the CourtLINDA REYNA YANEZ, Justice
PartiesJUAN JOSE SANCHEZ, Appellant, v. THE STATE OF TEXAS, Appellee.
Docket NumberNO 13-06-00564-CR,13-06-00564-CR
Decision Date16 December 2010


NO 13-06-00564-CR


December 16, 2010

On appeal from the 63rd District Court
of Val Verde County, Texas.


Before Chief Justice Valdez and Justices Yahez and Garza
Memorandum Opinion on Rehearing by Justice Yahez

On November 18, 2010, appellant, Juan Jose Sanchez, filed a motion for rehearing, requesting that the Court reconsider its disposition of his appeal. We grant the motion for rehearing, withdraw our previous opinion and judgment of October 21, 2010, and substitute the following in its place.

Sanchez was convicted of sexual assault of a child, a second-degree felony and

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was sentenced to five years' confinement.1 Sanchez challenges the judgment by three issues. In his first two issues, Sanchez contends that: (1) the trial court's comment that "police officers are the number one enforcers of [the] constitution" during voir dire constituted fundamental error; and (2) "the credibility of the verdict was fundamentally undermined" by a juror who had pleaded guilty to a felony crime of moral turpitude. In the alternative, Sanchez requests, by his third issue, that this Court "recognize that the concurrence in White v. State correctly analyzed the law and find that [the juror's] presence during deliberations constituted an 'outside influence.'"2 We affirm.3

I. Background

T.G. testified that she lived with her mother, her mother's boyfriend, and her uncle, Sanchez. T.G. stated that, on April 18, 2004, after returning from a short trip to San Antonio, Texas, she went to Sanchez's bedroom to talk to him.4 T.G. testified that she told Sanchez that while she was in a hotel's swimming pool, a boy, approximately her age, put his finger in her vagina.5 T.G. stated that while she talked to Sanchez, she was lying on her stomach on the floor playing with her cat and Sanchez was putting clothes away in his closet. T.G. testified that Sanchez then "sat down on her legs" and started rubbing her back. According to T.G., Sanchez then turned her around onto her back, pulled her jeans

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and underwear down to her knees, put his finger in her vagina, and moved it "back and forth." T.G. testified that Sanchez eventually asked her if she wanted him to stop, and she said, "Yes." T.G. explained that after Sanchez stopped, she pulled her underwear and jeans back on and wanted to leave; however, Sanchez asked T.G. to sit with him and talk for a little while. T.G. testified that Sanchez told her that he was sorry and he would never do it again. According to T.G., she then went to the kitchen and grabbed a knife because she "didn't want to live anymore." T.G. stated that she dropped the knife, dropped down to her knees, and started crying; she then told her mother what Sanchez had done, and her mother called the police.

Robert Hernandez, a sergeant with the Del Rio Police Department's patrol division, testified that he tape-recorded an interview with Sanchez. Sergeant Hernandez stated that he advised Sanchez of his constitutional rights and that Sanchez signed a "waiver of rights." Sergeant Hernandez informed Sanchez of T.G.'s allegations and asked Sanchez for his version of the incident. According to Sergeant Hernandez, Sanchez stated that he had "gone too far" and that Sanchez was "moving his left index finger down like this, like that, he had placed his hand on her crotch as he said and did this and told her to stop." Sergeant Hernandez stated:

That the way Mr. Sanchez explained [the incident] was that [the] young lady had lowered her pants and underwear down herself below her crotch.... He stated it was an accident.... He says that the young lady grabbed his hand while he was on her crotch, took both of his hands.... He stated that they had—it had gone too far, we shouldn't have done this, it shouldn't have gone this far.

The trial court then admitted State's exhibit two—three audio tapes of Sergeant

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Hernandez's interview with Sanchez—into evidence without objection.6

On cross-examination, Sanchez's counsel asked Sergeant Hernandez, "And if the force of her hand caused him to penetrate, okay, that wouldn't be a criminal offense, would it," Sergeant Hernandez replied, "If what you say is true, yes, sir." Sanchez's counsel then asked, "Okay, and if he didn't do it on purpose, but the force from her—the child putting her hand on his caused any penetration whatsoever, you understand that is not his own intentional act, correct," Sergeant Hernandez responded, "I wouldn't be able to describe what those intentional acts were."

On the audio recording, Sanchez admitted that "just the tip" of his index finger on his left hand went inside T.G.'s vagina. During the interview, Sanchez appears to claim that his finger somehow accidentally slipped into her vagina. He stated that T.G. was explaining what had happened with the boy at the swimming pool and that she pulled her pants down and "showed [Sanchez] what [the boy] did." According to Sanchez, he asked T.G. to pull her pants back up and told her "we can't." Sanchez speculated that T.G. was attempting to "lure" him into a sexual encounter. Sanchez claimed that he touched T.G.'s vagina when he attempted to pull up her pants.

T.G.'s mother, C.S.L., testified that she was lying in bed when T.G. came into the room waving at C.S.L. and nudging her. C.S.L. asked T.G. to tell her what was wrong, and T.G. was unable to talk and continued waving at C.S.L. C.S.L. stated that she then got up, followed T.G. to the hallway, and T.G. still could not talk. C.S.L. described T.G. as having her eyes wide open, "in shock," and "sort of" jumping up and down. C.S.L. testified that she continued asking T.G. what was wrong, and thinking that T.G. was choking, "hit" her

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back. After approximately thirty minutes, T.G. "blurted out something." However, C.S.L. stated that she could not understand what T.G. said. Eventually, C.S.L. understood what T.G. was saying, and C.S.L. called the police.7 According to C.S.L., approximately a week later, while she was at her mother's house, Sanchez arrived, began crying, and told the family, "yes, I did it...." C.S.L. stated that she could not understand anything else Sanchez said.

Sanchez was indicted for the offense of sexual assault of a child and the case went to trial.8 During voir dire, defense counsel asked the jury panel the following:

Okay. How many people feel the exact same way that [venire member fortytwo] does, that because you give greater weight to the testimony of a peace officer, you would require a defendant in any case, not just this case, any case to produce evidence in order to demonstrate his guilt—his innocence, excuse me.... Okay. Now, even though you feel that way can you put aside those feelings, because in fact your feelings are in direct contradiction to what the law requires, okay? The law doesn't require any defendant in any criminal case to produce one piece of evidence for one simple reason. He's presumed innocent, and that presumption of innocence is so great that if you had a hundred police officers testifying and you didn't believe their testimony beyond a reasonable doubt, even though he sat in silence and remained mute, you would be duty bound to acquit, okay? Again, that's the law, and that may not be how you feel, but the question is, can you set aside your feelings and follow the law, so let's start with [venire member twelve]. Can you set aside your feelings and follow the law, or do you think that a defendant has got to produce evidence in order to overcome what a peace officer testifies to?

Venire member twelve replied, "I'm a law enforcement officer, so I tend to give it a little more credit, you know, to the law enforcement officer. It would be hard to...." At this point, the trial court interrupted venire member twelve and stated:

Excuse me, excuse me. Before we do this[,] listen very carefully to what [defense counsel] is talking about here. I know we have a number of law

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enforcement officers on the panel today, and I know you take this personally. I take the United States Constitution and the laws that form this country personally, too, and I believe that police officers are our number one enforcers of that constitution, so listen carefully to what [defense counsel] is asking you. Go ahead.

Defense counsel did not object to the trial court's comment and stated:

Let me see if I can give it to you differently. I'm not here to trap police officers or teachers or anyone else, and quite frankly, having been a prosecutor, I know exactly how you feel, but even though you feel that way, that may not be what the law requires in order for you to sit on the jury. That attitude could be perfectly reasonable when you are out in the field making a bust or an arrest, okay? If I were an officer making arrests, I would trust my partner more than I would a civilian who told me something. That's normal, but out here you are in a different situation. My question is, can you put aside the way that you have been trained to think and the way you normally think and say look, I'm going to follow the law; I'm going to follow the constitution, and I'm going to do what I...

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