Pedroza v. State

Eric John Pedroza, Appellant v. The State of Texas, Appellee

NO. 03-19-00483-CR

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

July 9, 2021

FROM THE 51ST DISTRICT COURT OF TOM GREEN COUNTY

NO. A-17-0681-SB, THE HONORABLE CARMEN DUSEK, JUDGE PRESIDING

MEMORANDUM OPINION

Eric John Pedroza appeals from a judgment of conviction finding him guilty of one count of indecency with a child, see Tex. Penal Code § 21.11(a)(1), and sentencing him to eight years of confinement with the Texas Department of Criminal Justice (TDCJ). We will affirm the judgment of conviction.

BACKGROUND

On June 30, 2017, a grand jury charged Pedroza by indictment with three second-degree felony counts of sexual assault of a child and one second-degree felony count of indecency with a child by contact. The indictment alleged the offenses had occurred on or around June 12, 2016.

The case was tried to the bench on June 7, 2019. Prior to trial, Pedroza signed a Waiver and Stipulation of Evidence with respect to Count Four only, and the trial court confirmed that Pedroza understood the implications of that signing. In the Waiver and Stipulation, Pedroza stipulated:

[t]hat in Tom Green County, Texas, on or about the 12th day of June, 2016 [he] did then and there with the intent to arouse or gratify [his] sexual desire, engage in sexual contact with [the victim], by touching the breast of [victim], a child younger than 17 years of age.

Pedroza "further agree[d] and stipulate[d] to make restitution to [victim] in the amount of $140.00." He "further admit[ted], stipulate[d,] and judicially confess[ed] that [he is] the identical person named in the indictment . . . and that all the facts and allegations insofar as stated above are true and correct."

Pedroza then entered an open plea of guilty to Count Four, indecency with a child, and entered pleas of not guilty to Counts One, Two, and Three. As to his guilty plea to Count Four, the trial court questioned Pedroza regarding the voluntariness of his plea and announced, "I will accept your plea of guilty as to Count Four as being given freely and voluntarily."

At trial, the State called only one witness—the alleged victim. She testified that at the time of the alleged incident she was a teenager and Pedroza was a neighbor her family had invited in to watch movies. She testified that the rest of her family had gone to bed but that she and Pedroza had remained alone in the living room to finish watching a movie. She said that at some point she fell asleep in an armchair and woke up to find Pedroza "doing things" to her. When asked to clarify or specify what these "things" were, the witness declined. When asked why she would not describe what transpired, she said she did not want to talk about it "in front of [Pedroza]." On cross-examination, the victim conceded that it is "possible" that she hadpreviously offered two conflicting reports of what happened that night. She also conceded that, although she was "scared" of Pedroza, she continued texting him for weeks after the incident.

Like the State, the Defense called only one witness—Pedroza's wife, Karen Pedroza. By agreement of the parties and with approval from the bench, Karen testified as to both guilt/innocence and punishment. Karen devoted most of her testimony to describing her husband's medical history. She testified that he had ongoing memory and neurological issues due to a case of spinal meningitis he suffered as an infant. She also described his struggle with diabetes and several injuries he had sustained at work. Pedroza's counsel asked to admit Pedroza's medical records, but in absence of anyone to authenticate the records or an accompanying business records affidavit, the court sustained the State's objection to the records. Karen finished her testimony by conceding that Pedroza had told her he had "licked" the victim.

After both sides rested, the trial court asked if either party wanted to offer the Waiver and Stipulation into evidence. The State answered in the affirmative. The trial court asked if Pedroza wished to object, and his counsel answered in the negative. The trial court then admitted the Waiver and Stipulation into evidence as State's Exhibit #1.

Following closing arguments, the trial court found Pedroza not guilty as to Counts One, Two, and Three, and rendered judgments of acquittal as to those counts. The trial court found Pedroza guilty as to Count Four and rendered a judgment convicting him, as to that count, of the second-degree felony offense of Indecency with a Child by Contact. The trial court then sentenced Pedroza to eight years' confinement with TDCJ's Institutional Division.

Trial counsel filed a motion to withdraw, which the trial court granted. Pedroza did not file motion for new trial but filed pro se notice of appeal. The trial court appointedappellate counsel to file amended notice of appeal. This appeal of the judgment of conviction with respect to Count Four followed.

DISCUSSION

Pedroza raises two issues on appeal. First, he argues the trial court "violated [his] due process right to a fair trial before a neutral and detached judge during trial to the court on a plea of guilty as to Count Four of the indictment." Second, he contends that "defense counsel rendered ineffective assistance by failing to object to the trial court's solicitation of a proffer by the State of the Waiver and Stipulation of Evidence after the State failed to offer it before closing its case and by failing to object to admittance by the court of the Waiver and Stipulation of Evidence as an exhibit without a motion to reopen by any party."

Due Process

In his first issue, Pedroza complains of the admission of the Waiver and Stipulation of Evidence, arguing that he was denied due process when the trial court solicited admission of this evidence from the State after the State had already rested its case. Pedroza, however, did not object to the admission of the Waiver and Stipulation of Evidence and therefore has not preserved this purported error for our review. See Tex. R. App. P. 33.1(a); Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).

In an attempt to overcome his failure to preserve his challenge to the admission, Pedroza argues that the record here reflects a "structural error" that may be raised for the first time on appeal. See Mendez v. State, 138 S.W.3d 334, 342 (Tex. Crim. App. 2004); Segovia v. State, 543 S.W.3d 497, 502 (Tex. App.—Houston [14th Dist.] 2018, no pet.). "Structural errors" comprise a narrow class of cases involving the deprivation of federal constitutionalrights. See Johnson v. United States, 520 U.S. 461, 468-69 (1997). These errors include, for example, the total deprivation of the right to counsel, the absence of an impartial trial judge, the unlawful exclusion of grand jurors of the defendant's race, the denial of the right to self-representation at trial, the denial of the right to a public trial, and the erroneous reasonable-doubt instruction to the jury. See id. In this case, Pedroza argues that the trial court's solicitation of the Waiver and Stipulation and the court's subsequent admission of that Waiver and Stipulation into evidence reflect a biased judge such that he suffered from structural error.¹

The federal and state constitutions guarantee a defendant the right to an impartial judge. Abdygapparova v. State, 243 S.W.3d 191, 208 (Tex. App.—San Antonio 2007, pet. ref'd) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), and Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006)). When a claim of judicial bias is raised, we review the entire record to determine if it shows the judge's bias or prejudice denied the defendant due process. Id. at 198. Absent a strong showing to the contrary, we presume the trial judge was neutral and impartial. Id.

Unfavorable rulings do not alone show judicial bias or prejudice; rather, the judicial ruling must "connote a favorable or unfavorable disposition or opinion that is somehow wrongful or inappropriate, either because it is undeserved, or because it rests upon knowledge that the subject ought not to possess . . . or because it is excessive in degree." Id. (quoting Liteky v. United States, 510 U.S. 540, 550 (1994)). Specifically, judicial remarks or rulings may showbias if they reveal "an opinion deriving from an extrajudicial source." Liteky, 510 U.S. at 555. When there is no claim of an extrajudicial source, judicial remarks will constitute grounds for reversal "only if they reveal such a high degree of favoritism or antagonism as to make a fair judgment impossible." Id. The "high degree of favoritism or antagonism" must be clearly apparent from the judicial remarks themselves without interpretation or expansion of the words. Gaal v. State, 332 S.W.3d 448, 457-58 (Tex. Crim. App. 2011).

The record before us belies Pedroza's arguments regarding bias and structural error. The trial court opened the trial by reviewing the Waiver and Stipulation with Pedroza and ensuring that Pedroza understood its meaning and implications. When the trial court later asked the parties if either one wanted to admit the Waiver and Stipulation, and the State answered in the affirmative, the trial court expressly gave Pedroza an opportunity to object. The trial court's treatment of the Waiver and Stipulation simply does not reflect the type of prejudicial treatment that rises to the level of structural error. Cf. Johnson, 520 U.S. at 468-69 (offering, as example of type of bias that rises to level of structural error, example of adjudicant that had pecuniary interest in outcome of case (citing Tumey v. Ohio, 273 U.S. 510 (1927))). Nor does it reflect a high degree of favoritism or antagonism. Liteky, 510 U.S. at 555. We therefore overrule Pedroza's first issue.

Ineffective Assistance

In his second issue, Pedroza contends that "defense counsel rendered ineffective assistance by failing to object to the trial court's solicitation of a proffer by the State of the Waiver and...