Gosalvez v. State

DAVID GOSALVEZ III, Appellant, v. THE STATE OF TEXAS, Appellee.

NUMBER 13-19-00266-CR

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

March 11, 2021

On appeal from the 103rd District Court of Cameron County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Hinojosa and Silva

Memorandum Opinion by Justice Silva

Appellant David Gosalvez III appeals his conviction of retaliation, a third-degree felony. See TEX. PENAL CODE ANN. § 36.06. By four issues, Gosalvez argues (1) the trial court erred in making "improper comments on the weight of the evidence"; (2) the trial court erred in failing to include jury charge instructions on unanimity; (3) the trial court erred in admitting evidence of extraneous offenses; and (4) the existence of cumulative error necessitates a reversal. We affirm.

I. BACKGROUND

On March 13, 2018, Gosalvez was arrested on charges of aggravated assault; assault on a public servant; obstruction or retaliation; deadly conduct; resisting arrest, search, or transport; driving while intoxicated; and reckless driving.¹ At trial, Department of Public Safety Trooper Eulalio Mendez testified he pulled over Gosalvez at approximately 11:10 p.m., after he observed Gosalvez's "Tahoe pull out of a local [parking] lot" "with a woman hanging [off] the left-side door."

According to Trooper Mendez, Gosalvez's eyes were red, he could smell "an odor of alcohol" emanating from Gosalvez's breath, and Gosalvez admitted to drinking four beers. Although Gosalvez initially appeared "very calm" and cooperative, and he voluntarily performed several standardized field sobriety tests (SFSTs), Gosalvez's demeanor changed after Trooper Mendez placed Gosalvez under arrest for driving while intoxicated. Trooper Mendez said Gosalvez became combative when he attempted to place Gosalvez into the patrol unit. Gosalvez moved "violently," spat at him, and then kicked him in the leg.

A video recorded from Trooper Mendez's patrol unit dash cam was admitted into evidence. While the initial interaction between Gosalvez and officers cannot be seen, Gosalvez can be heard on the video making several disparaging and threatening statements to Trooper Mendez, including:

• "Let me tell you something, officer. I'm gonna remember who you are."

• "Mendez, you're going to get it, brother."

• "Mr. Mendez, I'll look for you. You don't know me but—."

• "Mr. Mendez, I feel sorry for you. I hope you have kids motherf-cker cause you're going to get it."

• "You don't know who I know."

• "[Inaudible] f-cking loose. I'll f-ck you up like a motherf-cker. I'll kick your ass."

• "Mr. Mendez, you better hope your family is f-cking secured, motherf-cker."

• "Let's go man-to-man. I know Calaveras. I know f-cking gangbangers."

Trooper Mendez explained that the Calaveras are a local biker gang. Trooper Mendez testified he interpreted Gosalvez's statements to be threats against him and his family made in retaliation for the arrest.

A supervising officer present during this exchange requested assistance from a "caged unit" because Trooper Mendez's vehicle did not have a divider. Trooper Mendez stated that the assisting officers placed Gosalvez in a "long restraint," wherein Gosalvez's legs and arms were "tied down on a long board."

Trooper Mendez said the restraint was removed at the jail, although Gosalvez remained aggressive, yelling expletives at him. When Gosalvez "attempt[ed] to walk towards [him] in a very violent manner," Trooper Mendez testified he drew his department-issued taser and instructed Gosalvez to sit down. On cross-examination, Trooper Mendez testified he could not recall whether he winked at the defendant prior to the defendant charging at him, but he conceded he made the statement, "You're a real tough guy. You sat down real quick, didn't you?" once Gosalvez complied with Trooper Mendez's ordersto sit down.² Trooper Mendez said that by that point in the evening, having been on the receiving end of threats for "several hours," he lost his composure and succumbed to "human nature."

Trooper Mendez also testified to an incident involving Gosalvez occurring approximately one year after his arrest. Following a court hearing, Gosalvez sent Trooper Mendez's wife a "friend request" on Facebook. There was no accompanying message to the request.

Troopers Carlos Javier Rodriguez and Jason Scott Vela testified they observed Gosalvez being verbally and physically combative during his arrest. Trooper Rodriguez testified he assisted in the initial attempt to place Gosalvez inside Trooper Mendez's patrol unit. Trooper Rodriguez said Gosalvez was "kicking and screaming," "attempted to spit" at him, and spat on Trooper Mendez. In response, Trooper Rodriguez said he grabbed Gosalvez by his t-shirt and "tried to place it over his head so he would quit spitting." Trooper Rodriguez testified he had to lay on top of Gosalvez in order to subdue him until "another officer came by that could put him inside their squad car with the cage." While Gosalvez was waiting to be booked at the jail, Trooper Rodriguez said Gosalvez kept demanding to speak to and "shouting towards" Trooper Mendez.

Gosalvez also testified at trial. Gosalvez, a chiropractor, stated he felt as if he had been treated unfairly by Trooper Mendez, and the mistreatment was a consequence of Trooper Mendez's resentment because of Gosalvez's socio-economic status as a"doctor."³ "I think he got offended by the fact that I was belittling him[⁴] or that I was doctor and he's an officer. I felt that vibe from the get-go," testified Gosalvez.

Gosalvez testified to the events leading up to his arrest. He stated that he had gone to South Padre Island to attend a concert with friends, and he had given "the mother of [his] child" a ride. At the concert, she became upset when she saw another female he had dated while they were separated. Gosalvez testified that he left the concert to avoid further confrontation. "[A]s I'm reversing out of the parking lot, . . . [s]he literally gets on my vehicle and is standing on my rail board, holding onto my mirror, and banging on my window," said Gosalvez, who was pulled over by Trooper Mendez shortly after.

Gosalvez said he was cooperative with the SFSTs because he knew he was not intoxicated. When Trooper Mendez placed Gosalvez under arrest, Gosalvez stated he did not "feel it was justified." Gosalvez denied spitting at or kicking Trooper Mendez. Gosalvez maintained he owns his "own little private gym," and he is familiar with martial arts; thus, he could have inflicted injuries had that been his intent, but it was not. Gosalvez testified:

I'm no threat to society. I do not want to harm anyone. I have children myself. At the time of arrest, I felt that I was being treated unfairly[,] and I knew that my livelihood and license could be jeopardized if I were to get in trouble[,] and that's the only thing that was on my mind.

Gosalvez apologized for his behavior, and stated he was unfamiliar with the criminal justice system and had never been convicted of a felony or crime of moral turpitude.

On cross-examination, Gosalvez maintained, "I've never really been in trouble . . . . I couldn't tell you how the law works. I didn't even know a state trooper from [a police department officer]." The State requested to approach the bench and notified the trial court that it intended to ask Gosalvez about his arrest record, which indicated Gosalvez had been arrested for assault family violence and violation of a protective order. Gosalvez objected, arguing that the prejudice to him outweighed any probative value to the State. The trial court allowed the State to briefly question Gosalvez on his two prior arrests.

During cross-examination, Gosalvez also conceded to threatening Trooper Mendez:

[State:] And it wasn't just one phrase, was it? It wasn't one threat?

[Gosalvez:] No, ma'am.

[State:] It was several threats, would you agree with me?

[Gosalvez:] Yes, ma'am.

[State:] And that it was because he arrested you and he was investigating a crime; is that not true?

[Gosalvez:] Correct.

. . . .

[State:] Now, would you agree that Trooper Mendez was actually very polite to you?

[Gosalvez:] He wouldn't talk to me. He would do this. The whole time just smirk at me like: Hi, I've got a badge. I've got power.

[State:] That's your testimony and your perception, not Trooper Mendez. You saw Trooper Mendez up here. He doesn't seem like a smirker, does he?

[Gosalvez:] He was that night.

[State:] And would you agree with me that even if he did smirk at you, you're not allowed to say, "I'm going to kill you" or "I'm going to find your family and hurt them"?

[Gosalvez:] Correct.

. . . .

[State:] Threat after threat and, again, you're admitting to every single element of this crime; is that not true?

[Gosalvez:] Yes, ma'am.

The jury returned a guilty verdict, and the trial court assessed punishment at five years' imprisonment probated for five years' community supervision. See id. § 12.34. This appeal followed.

II. JUDICIAL COMMENTARY

By his first issue, Gosalvez asserts that the trial court violated his right to due process because it made "direct comments disparaging the defense."

A. Standard of Review & Applicable Law

A trial court may exercise "reasonable control" over the examination of witnesses and the presentation of evidence so as to "(1) make those procedures effective for determining truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment." TEX. R. EVID. 611(a)(1)-(3). When doing so, "[t]he trial judge shall maintain an attitude of impartiality." Ex parte Scott, 541 S.W.3d 104, 125 (Tex. Crim. App. 2017) (quoting Lagrone v. State, 209 S.W. 411, 415 (Tex. Crim. App. 1919)). Both dueprocess and article 38.05 of the Texas Code of Criminal Procedure require a neutral and detached judge. Grado v. State, 445 S.W.3d 736, 739 (Tex. Crim. App. 2014) (citing Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)); see U.S. CONST. amend. XIV; TEX. CODE...