Villarreal v. State
| Decision Date | 27 December 2019 |
| Docket Number | No. 04-18-00484-CR,04-18-00484-CR |
| Citation | 596 S.W.3d 338 |
| Parties | David Asa VILLARREAL, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Opinion by: Sandee Bryan Marion, Chief Justice
A jury convicted appellant David Asa Villarreal ("Villarreal") of murder with a repeat offender enhancement and sentenced him to confinement for sixty years. In two issues on appeal, Villarreal argues the trial court erred by admitting hearsay testimony and by limiting his ability to confer with counsel during an overnight recess in violation of his Sixth Amendment right to counsel. We affirm the trial court's judgment.
In his first issue, Villarreal argues the trial court erred by admitting, over his hearsay objection, testimony regarding the contents of a text message sent on the night of the murder by the victim to Veronica Hernandez, a mutual friend of Villarreal and the victim. During Hernandez's direct examination, the following exchange occurred:
As a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by timely objection. TEX. R. APP. P. 33.1(a)(1). Where the complaint raised on appeal does not comport with the trial objection, nothing is preserved for our review. Clark v. State , 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) ; Huerta v. State , 933 S.W.2d 648, 650 (Tex. App.—San Antonio 1996, no pet.). "In addition, a party must object each time the inadmissible evidence is offered or obtain a running objection." Valle v. State , 109 S.W.3d 500, 509 (Tex. Crim. App. 2003). "An error in the admission of evidence is cured where the same evidence comes in elsewhere without objection." Id.
Here, although the trial court overruled Villarreal's initial hearsay objection, Hernandez did not immediately testify regarding the contents of the victim's text message. Rather, after answering several additional questions regarding her familiarity with the victim's telephone number and the frequency of her communications with the victim, Hernandez eventually relayed the contents of the victim's text message in response to a different question. Villarreal objected to Hernandez's response to the latter question on the basis of speculation but not hearsay. Accordingly, because Villarreal failed to obtain a ruling on a running objection or to re-urge his objection to the testimony on the basis of hearsay, his hearsay complaint is not preserved. Villarreal's first issue is overruled.
In his second issue, Villarreal argues the trial court erred by limiting his ability to confer with his counsel during an overnight recess in violation of his Sixth Amendment right to counsel. Specifically, Villarreal complains of the following exchange between the trial court and Villarreal's counsel, which took place during Villarreal's direct examination and prior to an overnight recess:
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington , 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In reviewing a complaint that the trial court deprived a defendant of counsel during a portion of the trial, we apply an abuse of discretion standard. Burks v. State , 227 S.W.3d 138, 144 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd) (citing Perry v. Leeke , 488 U.S. 272, 282, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989) ; Geders v. United States , 425 U.S. 80, 86–91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) ).
Although the trial court has "broad power to sequester witnesses before, during, and after their testimony," the Supreme Court has held this discretion is significantly limited by the Sixth Amendment when applied to a testifying defendant. Geders , 425 U.S. at 87–88, 96 S.Ct. 1330. In Geders , the Supreme Court held the trial court abused its discretion by prohibiting the defendant from consulting his counsel "about anything" during an overnight recess between the defendant's direct and cross-examinations. Id. at 88, 91, 96 S.Ct. 1330.
However, not every restriction on a defendant's ability to communicate with his counsel violates his Sixth Amendment right to counsel. In Perry , the Supreme Court held it was not an abuse of discretion to prohibit a defendant from conferring with his counsel during a fifteen-minute recess between the defendant's direct and cross-examinations. 488 U.S. at 284–85, 109 S.Ct. 594. The Court reasoned that because a defendant "has no constitutional right to consult with his lawyer while he is testifying," the trial judge must have the power to "maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the witness and the lawyer would relate to the ongoing testimony." Id. at 281, 283–84, 109 S.Ct. 594. Noting the "thin" line between the facts at issue in Perry and those at issue in Geders , the Perry Court distinguished the fifteen-minute recess from the overnight recess in Geders , explaining:
The interruption in Geders was of a different character because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters that go beyond the content of the defendant's own testimony—matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain.... The fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right.
The Supreme Court, therefore, has recognized the trial court may prevent a testifying defendant from discussing his ongoing testimony with his counsel but may not prohibit the defendant and his counsel from discussing matters "that go beyond the content of the defendant's own testimony," such as trial strategy. See id. In this case, the trial court tried to thread the needle by advising Villarreal that he could talk to his attorneys during the overnight recess but instructing Villarreal's attorneys not to discuss The trial court asked counsel if...
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