State v. Balderas

• Decision Date: 18 January 1996
• Docket Number: No. 01-95-00486-CR,01-95-00486-CR
• Citation: 915 S.W.2d 913
• Parties: The STATE of Texas, Appellant, v. Juan Jose BALDERAS, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 913

915 S.W.2d 913

The STATE of Texas, Appellant, v. Juan Jose BALDERAS, Appellee.

No. 01-95-00486-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Jan. 18, 1996.

Travis L. McDonald, Jr., Waller, for Appellant.

Albert M. McCaig, Jr., Waller, for Appellee.

Before COHEN, HEDGES and TAFT, JJ.

OPINION

TAFT, Justice.

Appellee, Juan Jose Balderas, was convicted of aggravated sexual assault of a child. The jury assessed punishment at 40-years confinement. Appellee moved for a new trial, and the trial court granted the motion. The State appeals.

We vacate and remand.

Summary of Facts

Appellee went to the Hempstead Police Department and made a voluntary confession. Appellee stated that the reason he was confessing was because his common-law wife, Mary Contreras, told him that her mother, Agnes Herrera Figueroa, and Contreras's 13-year-old daughter, A.C., were probably going to file a complaint against him for molesting A.C.

In his confession, appellee stated that his molestation of A.C. began in 1988 or 1989, but that he could not remember exactly when or how it started. He had sexual contact with A.C. five to 10 times. The last time he fondled A.C. was last year (meaning 1993). On that occasion, appellee got on top of A.C. and fondled her breasts and vagina, then got off her because a car pulled up at the house.

Agnes Figueroa testified that A.C. told her that appellee "put his fingers between [her] legs in [her] privacy." A.C. also told her grandmother that on one occasion appellee pulled her clothes off and got on top of her.

Officer Linda West took A.C.'s statement. A.C. told her that appellee had asked A.C. if she sucked genitals. A.C. also told Officer West that appellee had sucked her breasts and put her on top of him and that he placed his finger inside her vagina. In addition, A.C.'s testimony confirmed the substance of appellee's confession, the officer's testimony, and her grandmother's testimony.

Motion for New Trial--Timely Presentation

In its first point of error, the State contends that the trial court erred by granting appellee's motion for new trial because appellee did not timely present the motion for new trial to the court. The State argues that Texas Rule of Appellate Procedure 31(c)(1) requires a timely presentment before the trial court can hold a hearing and grant or deny the motion. We agree. However, read in its entirety, rule 31(c)(1) provides:

An accused shall present his motion for new trial to the court within ten days after filing it, unless in his discretion the trial judge permits it to be presented and heard within 75 days from after [sic] date sentence is imposed or suspended in open court.

Under the rule, the trial court has the discretion to allow a motion for new trial to be presented within 75 days after the date sentence is imposed. Sentence was imposed on January 12, 1995. The motion for new trial was filed January 27, 1995, and heard on March 9, 1995. March 9, 1995, is a date within 75 days of January 12, 1995. Thus, the trial court had the discretion to allow the motion for new trial to be presented on March 9.

The State does not argue that the trial judge's decision to allow the motion for new trial to be presented on March 9 was an abuse of the discretion vested in him by rule 31(c)(1). We can see no reason why it would be.

We overrule the State's first point of error.

Grant of Motion for New Trial--Abuse of Discretion

In its second point of error, the State contends that the trial court erred in granting appellee's motion for new trial. The standard of review on this issue is whether the trial court abused its discretion in granting the motion. State v. Gonzalez, 855 S.W.2d 692, 696 (Tex.Crim.App.1993); State v. Lyons, 812 S.W.2d 336, 341 (Tex.Crim.App.1991). "[O]nly when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree" will the decision be reversed. Cantu v. State, 842 S.W.2d 667, 682 (Tex.Crim.App.1992).

In his motion for new trial, appellee brought 11 points that he claimed were a basis for granting a new trial. These are discussed (in groups) below.

1. Newly Discovered Evidence

In order to obtain a new trial because of newly discovered evidence, a defendant must show that: (1) the newly discovered evidence was unknown to him at the time of trial; (2) his failure to discover the evidence was not due to his want of due diligence; (3) the evidence would probably bring about a different result in another trial; and (4) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching. Drew v. State, 743 S.W.2d 207, 226 (Tex.Crim.App.1987); Tate v. State, 834 S.W.2d 566, 570 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd).

Appellee alleges that a witness, Tony Contreras, would testify that a person other than appellee committed the offense. However, appellee has failed to meet his burden of proof. First, appellee has not shown why this evidence was not discovered before trial. The affidavit suggests that Tony Contreras was present in the courtroom during A.C.'s testimony. Appellee did not state in the motion for new trial that the witness was unknown or unavailable at trial. Second, the motion did not contain an affidavit from trial counsel and trial counsel did not testify at the hearing that he used due diligence to obtain this evidence. Third, the motion did not state that this evidence would bring about a different result in a new trial. The affidavit does not claim that another person committed the offense. Lastly, the evidence is inadmissible because it is merely impeaching, which renders it insufficient as newly discovered evidence. See Tate, 834 S.W.2d at 570. Moreover, the affidavit merely claims that A.C. may have had sexual relations with someone else, which is not relevant.

Appellee also argues that new evidence has been obtained from the Texas Department of Health and the Public Health Clinic of Belleville, Texas. However, there is no evidence regarding any information from these places. If the motion is not supported by a prior affidavit or evidence at the hearing on the motion for new trial, then it is not enough to support a new trial. See Mandujano v. State, 799 S.W.2d 318, 321 (Tex.App.--Houston [1st Dist.] 1990, no pet.). Furthermore, appellee again fails to meet the four elements required to obtain a new trial for discovery of new evidence. For the trial court to have granted the motion for new trial on this ground would have been an abuse of discretion.

2. Dismissal of Disabled Juror

Texas Code of Criminal Procedure article 36.29(a) provides in part:

Not less than twelve jurors can render and return a verdict in a felony case. It must be concurred in by each juror and signed by the foreman.... [H]owever, when pending the trial of any felony case, one juror may die or be disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict....

TEX.CODE CRIM.P.ANN. art. 36.29(a) (Vernon Supp.1996).

Absent abuse of discretion, no reversible error will be found for determining when a juror becomes disabled. Bass v. State, 622 S.W.2d 101, 106-07 (Tex.Crim.App.1981). However, the trial court's power to discharge a juror for a disability is limited to when there exists some physical illness, mental condition, or emotional state which hinders the juror's ability to perform his duty. Landrum v. State, 788 S.W.2d 577, 579 (Tex.Crim.App.1990).

In this case, the trial court found that juror Thomas was disabled due to medical problems (surgery). This conclusion is supported by the record. After the jury was sworn, Thomas advised the court that he was scheduled to visit the doctor and might need back surgery. The trial court told Thomas that it was very important for him to be at the trial and asked if he could reschedule the operation. Thomas informed the court that he had already postponed the operation once and gave no indication that he was trying to avoid jury duty. In the hearing on the dismissal of the juror, the trial court called the deputy clerk, Pat Spadachene, to the stand. The court asked her if she had received a phone call from Thomas. She replied, "[Y]es" and stated that he was going to have back surgery that morning. The trial judge then asked if either attorney had any questions for Mrs. Spadachene and both attorneys said, "[N]o." Over appellee's objection, the trial court decided to proceed with 11 jurors under article 36.29.

Appellee also argued to the trial court that it should have granted appellee's motion for new trial because the court should not have overruled appellee's motion for continuance when the jury lost a member. However, appellee failed to move for a continuance, only objecting to the trial court's finding that Thomas was disabled. Furthermore, the trial court found that Thomas was disabled and properly proceeded with 11 jurors; therefore, no continuance was necessary.

For the trial judge to have granted the motion for new trial on this ground would have been an abuse of discretion.

3. Insufficiency of Evidence

The standard of review is whether, viewing all the evidence in the light most favorable to the verdict, any rational jury could have found the elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989).

Appellee complained to the trial court in the motion for new trial that the evidence did not prove that he was guilty of aggravated sexual assault of a child, but, if guilty, it was only of indecency with a child. However, the evidence confirming the jury verdict is overwhelming. To meet the elements of aggravated sexual assault of a child, the State was required to prove that the appellee penetrated the female sexual organ of the child by any means. Appellee argues that he did not confess to penetration. Nevertheless, A.C. testified the...