Fernandez v. State

597 S.W.3d 546

Ruben FERNANDEZ, Jr., Appellant,

v.The STATE of Texas, Appellee.

No. 08-17-00217-CR

Court of Appeals of Texas, El Paso.

February 20, 2020

Discretionary Review Refused July 22, 2020

Daniel Robledo, 3000 E. Yandell, El Paso, TX 79903, Attorney for Appellant.

Jaime E. Esparza, District Attorney, El Paso County Courthouse, 500 E. San Antonio, Suite 201, El Paso, TX 79901, Attorney for Appellee.

Before Alley, C.J., Rodriguez, and Palafox, JJ.

OPINION

GINA M. PALAFOX, Justice

A jury convicted Ruben Fernandez, Jr., of one count of aggravated assault with a deadly weapon and one count of family-violence assault against a household member after a previous conviction.¹ In four issues, Fernandez challenges both convictions by raising complaints about matters occurring before and during trial to include the State's request for a writ of attachment against its complaining witness, the excusal of a juror for disability after experiencing a sudden illness, and the admission of complained-of extraneous evidence during the guilt-innocence phase of trial. Finding no error, we affirm.

BACKGROUND

Pre-trial Proceedings

Fernandez was initially indicted on August 26, 2015, then re-indicted on May 18, 2016, having been charged with committing the two offenses referenced above. Both offenses were alleged to have been committed on or about April 25, 2015, against the same victim, Cynthia Flores, by means of striking her with a clothing iron. During pre-trial proceedings, the trial court entered a discovery order that required the State to give written notice seven days before trial of any extraneous offenses that it intended to introduce in its case-in-chief. On October 27, 2015, Fernandez also filed a request for notice of any extraneous acts that the State intended to use and requested that any notice be given not later than seven days in advance of the start of trial. Prior to trial, the State filed a series of notices to the defense that detailed the extraneous acts it would potentially use during both the guilt and punishment phases of trial. The State's notices alleged over a dozen unreported bad acts committed by Fernandez against Flores which were characterized as demonstrating, "[c]ontinuous physical, verbal and emotional abuse; [against] victim [Cynthia Flores][.]"²

Guilt Phase of Trial before Opening Statements

Trial commenced on the morning of Monday, September 11, 2017, and both sides announced ready. After a twelve-person jury and one alternate juror were empaneled and sworn, the jurors received preliminary instructions and then departed for their lunch break. Outside the jury's presence, the State then requested a forfeiture-by-wrongdoing hearing under article 38.49 of the Code of Criminal Procedure.³ The State informed the court that Cynthia Flores, the alleged victim, had failed to appear for trial that morning despite having been served with a subpoena compelling her attendance which included a duces tecum requiring Flores to also bring her daughter, A.F., to court.⁴ In requesting a hearing, the State asserted it could establish through witness testimony that wrongdoing on the part of Fernandez had led to Flores' non-appearance for trial. Based on article 38.49, the State argued that Fernandez should forfeit his right to object to the admissibility of any prior statements by Flores so as not to benefit from his alleged wrongdoing.

Before witnesses were called, the parties engaged in a lengthy discussion with the court about Flores' non-appearance and the alleged conduct by Fernandez that would be considered relevant to the scope of the hearing. During this colloquy, the State gave its first indication on the record that it had sought and obtained a writ of attachment from the trial court earlier that morning commanding the arrest of Flores and for her to be immediately brought to the court once she was taken into custody. When asked to respond, defense counsel primarily focused on evidentiary concerns he had with the State's evidence relevant to its request for a forfeiture by wrongdoing. Rather than seek a forfeiture hearing, defense counsel suggested that the State could request a writ of attachment as their appropriate remedy to address Flores' absence from trial. The trial court then acknowledged having earlier signed a writ of attachment as requested by the State. Defense counsel responded by objecting to the prolonged delay caused by the proposed hearing given that the State had earlier announced ready for trial. The trial court asked whether defense counsel had thought that the State had witnesses ready for trial. Counsel responded that he knew there was a possibility that Flores would not cooperate with the State as she had expressed to him her desire of not wanting "to go through with this case." Contrary to the State's argument, however, defense counsel indicated he would assert to the court that Flores was afraid to appear because she had given a false statement to the police about the events in question.

Proceeding with the hearing, the State called a witness who worked for the District Attorney's Office assigned to victims' assistance, among others, to establish that Fernandez engaged in conduct designed to cause Flores not to be present for trial. The victim assistance witness testified that Flores had five to ten contacts with her over the course of many months and during those occasions Flores had described ongoing incidents of abuse against her, but also at times recanted the allegations she made of having been abused. For example, the witness described that on one occasion she received an email purportedly from Flores (albeit with Fernandez' email address) stating that she wanted the charges dropped as she was back with Fernandez and they were doing great. But later, when Flores came into her office in person, she denied sending the email and claimed it had been sent by Fernandez himself. The State's witness testified that Flores signed an affidavit attesting that she had not sent the email in question. The witness also testified that on another occasion Flores had revealed to her that she had signed a non-prosecution statement in which she claimed she had lied about Fernandez hitting her and she had wanted the charges brought against him dropped. The witness testified that Flores told her she had injured herself while working or something of that nature. The last contact with Flores occurred in October of 2016, or eleven months prior.

During the hearing, when the trial court asked defense counsel if he had any objection to admitting the copy of the writ of attachment which had been issued (State's Exhibit 2), defense counsel expressed his concern at how the writ had been signed by the court without his knowledge and outside his presence, but he sought no ruling from the court nor lodged an objection:

Well, Judge, I mean, no objection to State's 2 for the purposes of this hearing, but I'm a little bit puzzled, as defense counsel, as to how the prosecutors were approaching the Judge to sign the writ of attachment and the defense counsel was not present and was not made aware that a writ of attachment had even been signed until later on this morning. So, clearly, I've got some additional questions about, I mean, how that whole process came about. We had no idea until about an hour ago, Judge.

But for the purposes of this hearing and that specific exhibit, no, I don't object but later on I will have an objection, Judge.

At the close of the hearing, the trial court denied the State's request for forfeiture based on insufficient evidence to show conduct by defendant designed to keep the complainant from appearing. Nonetheless, even though the trial court denied the forfeiture by wrongdoing, the court thereafter recessed the proceeding until the next morning to give the State time to attach Flores pursuant to the writ that had been issued hours earlier.

The next morning on September 12, the defense announced ready for trial, but the State did not. The State instead requested a continuance until Friday, September 15, for additional time to locate Flores and A.F. Defense counsel objected to the continuance, but the trial court, noting its concern about jeopardy attaching if it declared a mistrial, granted a recess until Friday.

On the morning of Friday, September 15, the defense announced ready for trial, and the State once again announced that it would be requesting a continuance pursuant to a motion it filed that same morning. The State requested more time to locate Flores and A.F. The trial court held a hearing on the continuance, but the hearing was abruptly cut short when the State brought a detective into the courtroom to inform the court that the El Paso Police Department had just then found Flores and A.F. at a hotel. The court then excused the detective to allow him to proceed with the writ of attachment. Defense counsel then renewed his concern about the trial court's issuance of the writ of attachment and objected that proper procedures were not followed as required by the Code of Criminal Procedure. Defense counsel more specifically argued that the trial court did not follow the proper procedure under article 24.12 of the Code in that the court did not require the State to articulate on the record the grounds for its motion for writ of attachment and "articulate sufficient information about the expected testimony to show materiality." While arguing, defense counsel asserted that the Court of Criminal Appeals had interpreted article 24.12 as requiring counsel, when seeking a writ, to assert on the record the grounds for his or her motion and the expected testimony of the witness being attached to show materiality. See Sturgeon v. State , 106 S.W.3d 81, 90 (Tex. Crim. App. 2003).

Responding, the State asserted that Fernandez had no standing to contest or question any subpoena issued by the State for its witnesses or for a writ of attachment for the complaining witness. During the ensuing...