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Aguilar v. State

Court of Appeals of Texas, Fourth District, San Antonio

November 22, 2017

Miguel AGUILAR, Jr., Appellant
v.
The STATE of Texas, Appellee

         From the 406th Judicial District Court, Webb County, Texas Trial Court No. 2014CRS1753 D4 Honorable Oscar J. Hale, Jr., Judge Presiding

          Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice

          OPINION

          Rebeca C. Martinez, Justice

         Miguel Aguilar, Jr. appeals his conviction on one count of continuous sexual assault of a child and three counts of indecency with a child arguing three main issues: (1) he was denied a fair trial because a biased juror served on his jury; (2) his trial counsel rendered ineffective assistance by failing to file a motion to quash the indictment based on double jeopardy and an unconstitutionally vague statute; and (3) the trial court abused its discretion by failing to hold a hearing on his motion for new trial. We affirm the trial court's judgments.

          Background

         Because Aguilar does not challenge the sufficiency of the evidence or raise any other evidentiary issues, only a brief recitation of the facts is warranted.

         Aguilar married Blanca in 1990 and they had six children together, including five daughters. They divorced in 2009, and Miguel was awarded full custody of all the children. No allegations of sexual abuse were raised during the divorce proceedings. In April 2014, one of the daughters, "Teresa" [a pseudonym], made an outcry to her eldest sister Samantha when she picked up Teresa from school. Teresa stated that her father had been sexually abusing her for years. Samantha proceeded to pick up another sister, "Sonia" [a pseudonym], from school and Sonia made a similar outcry about her father sexually abusing her. Another daughter, Anna, was also in the car at the time and made similar allegations of sexual abuse by their father. Samantha drove the girls home and told another sister, Bianca, about the claims of abuse by their father. Bianca called their mother and told her about her sisters' allegations against their father. All of the girls went to the police station, along with their mother, to report the abuse and give statements.

         Aguilar was indicted on four counts of indecency with a child by contact against Sonia in 2014, and one count of continuous sexual abuse against Sonia and Teresa during the period from November 17, 2007 through June 17, 2013. See Tex. Penal Code Ann. §§ 21.11(a)(1), 21.02 (West 2011 & Supp. 2016). At trial, Samantha testified to the outcry statements by Sonia and Teresa that Aguilar would make them sleep with him at night and would engage in various acts of sexual contact with them. Sonia and Teresa testified similarly. Aguilar testified and proclaimed his innocence. He presented evidence that at least one of the counselors who examined the girls was initially "unable to determine" whether they had been sexually abused. No physical or medical evidence of sexual abuse was admitted. The jury found Aguilar guilty on all counts, except Count I which was abandoned by the State prior to trial. He was sentenced to eighty years of imprisonment on the continuous sexual abuse count and twenty years of imprisonment on each count of indecency, with the sentences to run concurrently.

         Biased Juror

         In his first three issues, Aguilar asserts he was denied his state and federal constitutional rights to a fair and impartial jury because a biased juror served on his jury. The State responds that Aguilar failed to preserve any error when he declined to pursue an objection to the juror's continued service after the juror was questioned at the bench about any potential bias.

         Jury selection took place on April 25, 2016 before Associate Judge Melissa Joy Garcia. J.S. was sworn in as one of the jurors. Trial began two days later on April 27, 2016 before District Judge Oscar J. Hale, Jr. Before opening statements began, defense counsel informed the trial court and prosecutor on the record that he learned that J.S. had posted a comment about the trial on Facebook after being selected to the jury. Defense counsel expressed his concern that the post indicated a "gender bias in favor of women" and argued it was significant because the victims were two young girls and the prosecutor was a woman. The post read as follows:

Just yesterday I wrote a paper on Women in Leadership & had to explain why we are underrepresented. Ironically I had jury duty today & who is the judge? Melissa Joy and prosecutor Linda G . . . Then I get selected to serve on a trial beginning on Wed . . . Happy B-Day to me. Guess I'll be spending it with strangers.

         The post was accompanied by a photograph of J.S.'s juror identification card. J.S. also commented on her own post, stating, "Louie, I forgot to mention we were in Monica's courtroom. Imagine that?? Women in power . . . I love it!"

         Judge Hale read the post and stated that "gender bias is one thing, " but promoting "women [in] power" is another, noting that unequal pay for women is currently "a hot topic on the national level." The judge stated he would allow counsel to question J.S. under oath on the record, but also stated, "unless you're going to show us something else that she said specifically about how she's biased against men, " then "I really don't see anything on this."

         J.S. was brought into the courtroom and placed under oath. After defense counsel obtained her confirmation that she wrote the Facebook post and comment, he posed the following question, "after hearing all the evidence, the judge is going to give you an instruction to set aside your personal feelings, to set aside your bias, bias for women against men. And my feeling is that, from your position, you are unable to do that. Is that true?" Before she could reply, the trial court interrupted, stating that defense counsel had not established anything yet and the question was based on assumptions; the court instructed counsel to rephrase the question. After another question by defense counsel asking whether the juror "would be able to put your biases aside, " the trial court again interrupted and took over the questioning. The court asked, "Do you have a bias against men?" and J.S. replied, "Negative. No. Not at all. I'm just very proud of these girls. They've gone a long way." In response to the court's follow-up question, "Do you have a bias against the defendant, more specifically, " she answered, "No, sir, no." The trial court asked two more questions about whether J.S. could judge the credibility of the witnesses' testimony equally, "whether they were male or female, or the defendant or the victim, " and she confirmed that she could do so. At that point, the court asked defense counsel whether he had any other questions, and counsel stated, "No further questions." J.S. left the courtroom and defense counsel stated, "Thank you, your Honor" and requested that the Facebook posting, marked as Defendant's Exhibit 1, be included in the record. When the court inquired, "Anything else?" defense counsel moved on to another matter involving a motion in limine by the State.

         The record reflects that at no time did counsel for Aguilar raise any further objection to J.S. serving on the jury, move to have her excused and replaced by the alternate, or move for a mistrial. In his reply brief, Aguilar asserts that his counsel made "an objection through context" and that it was apparent to the trial court that counsel objected to the continued jury service of J.S. The context of the exchange on the record, as set forth above, does not support Aguilar's assertion that the issue was preserved. The record shows that the trial court inquired into any potential bias by J.S., her answers did not show a bias, and defense counsel did not express any objection to her continued jury service, or request a substitution or any other relief, after the questioning. Therefore, Aguilar waived any error with respect to any bias by J.S. See Tex. R. App. P. 33.1(a).

         Aguilar mistakenly argues in his reply brief that the right to an impartial jury cannot be waived by a defendant. The Court of Criminal Appeals has expressly held that "the right to trial by impartial jury, like any other right, is subject to waiver (or even forfeiture) by the defendant in the interest of overall trial strategy." State v. Morales, 253 S.W.3d 686, 697 (Tex. Crim. App. 2008) (also stating the right to an impartial jury is "not to be regarded . . . within the rubric of Marin v. State, as a fundamental feature of the system which is not optional with the parties" as it "is a right which is to be exercised at the option of the defendant"); see also Flores v. State, No. 04-15-00172-CR, 2015 WL 5838078, at *4 (Tex. App.-San Antonio Oct. 7, 2015, pet. ref'd) (mem. op., not designated for publication) (same).

         Finally, even if Aguilar's gender-bias issue had been preserved, it lacks merit. The record does not establish that J.S. had a bias against men or in favor of women, or more specifically, a bias against the defendant, which would disqualify her from serving on the jury. See Tex. Code Crim. Proc. Ann. art. 35.16(a)(9) (West 2006) (biased or prejudiced juror is unfit to serve). In addition, the substance of Aguilar's argument in his brief does not match the gender-bias argument he made at trial (or listed in his points of error). Aguilar argues in his brief that J.S.'s Facebook posting constituted "an unauthorized conversation with someone outside of the jury" which entitles him to a new trial under Tex.R.App.P. 21.3(f), not that it revealed a bias in favor of women, or against men or Aguilar. See Tex. R. App. P. 21.3(f) (requiring a new trial in a criminal case upon the occurrence of certain events, including "when, after retiring to deliberate, the jury has received other evidence; when a juror has talked with anyone about the case; or when a juror became so intoxicated that his or her vote was probably influenced as a result"). Aguilar never raised the issue of "outside communications" by J.S. at trial, only gender bias. See Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990) (nothing is preserved for review when the appellate issue does not match the trial objection). Finally, Aguilar asserts that when the trial court took over the questioning of J.S., it changed the scope of the inquiry from a gender bias "in favor of women, " as Aguilar was claiming, to one "against men, " and thereby prevented him from pursuing his issue. That claim is contradicted by the record which shows, as quoted above, that Aguilar's initial question concerned a possible bias by J.S. ...


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