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Corporon v. State

Court of Appeals of Texas, Third District, Austin

October 2, 2019

Robert Wayne Corporon, Appellant
v.
The State of Texas, Appellee

          FROM THE 424TH DISTRICT COURT OF LLANO COUNTY NO. CR7543, THE HONORABLE EVAN C. STUBBS, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Triana

          OPINION

          GISELA D. TRIANA, JUSTICE

         A jury convicted appellant Robert Wayne Corporon of two counts of indecency with a child by sexual contact and assessed punishment at twelve years' imprisonment for count one and fifteen years' imprisonment for count two. See Tex. Penal Code § 21.11(a)(1). The district court rendered judgment on the verdicts and ordered the sentences to run consecutively. In five issues on appeal, Corporon asserts that: (1) the district court abused its discretion when it failed to hold a hearing on Corporon's motion for new trial; (2) his right to a public trial was violated when members of his family were "excluded" from the courtroom during jury selection; (3) the district court erred when it failed to conduct a hearing on the admissibility of extraneous-offense evidence; (4) the evidence is insufficient to support his convictions; and (5) the district court abused its discretion in failing to grant a mistrial when the State elicited testimony relating to the prosecutor's opinion of the case. We will affirm the district court's judgments.

         BACKGROUND

         Corporon is the step-grandfather of C16-788, the victim in the case.[1] At the time of the alleged offenses, C16-788 lived in Colorado with her parents and siblings, and Corporon, the husband of the children's maternal grandmother, lived in Llano County, Texas. The jury heard evidence that in the summer of 2016, when C16-788's family was vacationing in Texas at Corporon's lakehouse, Corporon touched C16-788's sexual organ and her anus.

         C16-788, who was eight years old at the time of the offenses and ten years old at the time of trial, testified that on July 4, 2016, during a fireworks display, Corporon picked her up, with one arm holding her legs and the other arm behind her back. C16-788 recounted that Corporon, using the arm that was behind her back, moved his hand underneath her pants and underwear, touching her "cheeks" and "back end." C16-788 added that Corporon's hand went inside her "crack" and pushed up against her "hole," which she identified as the part of her body that is used for "going number two." According to C16-788, the incident was observed by Corporon's father, who was staring at Corporon when his hand was in C16-788's pants, which made her uncomfortable. Corporon stopped touching C16-788 when she pulled his hand out of her pants and "got down to go see what [her] dad was doing."

         C16-788 further testified that on a later date during the same vacation, Corporon touched her in her "front area" while helping her put on a life jacket to go swimming. C16-788 explained that Corporon put his hand inside her swimsuit, "cupped" the area between her legs, and "pinched the pink thing" "in the middle" of "the front part" of her body, which she identified as the part of her body that is used for "going number one." C16-788 testified that while Corporon was putting on her life jacket and touching her there, he asked her, "How does that feel?" C16-788 pulled his hand out of her swimsuit and ran off to go swimming.

         Later that day, as C16-788 was watching a movie with Corporon and other family members, Corporon asked her to sit on his lap. C16-788 testified that when she did so, Corporon placed his hand underneath her clothes and touched her "cheek." C16-788 pulled his hand out, told him, "Don't do that," and sat on the floor. C16-788 also testified that at some point before the movie began, Corporon had touched her chest.

         C16-788's mother testified that while they were staying at the lakehouse, C16-788 told her that Corporon was "constantly putting his hands down her pants and touching her." C16-788's mother told her husband, and they agreed to return to Colorado the following day. Upon their return, C16-788's parents contacted law enforcement in both Colorado and Texas and an investigation began. C16-788 was first interviewed in Colorado. The information obtained during the interview was relayed to investigators in Texas, who determined that the touching described by C16-788 during her interview in Colorado did not meet the elements of the Texas indecency statute and closed the case.

         The case was later reopened when C16-788's mother contacted the Llano County Sheriff's Office with additional information. The mother informed investigators that she had additional conversations with C16-788, and that during these conversations, the child had provided a more detailed account of the incidents. C16-788 was then interviewed in Texas.

         Based on the information obtained during the Texas interview and other evidence, which we discuss in more detail below, Corporon was charged in a four-count indictment with the offense of indecency with a child by contact. At trial, the State abandoned Count IV of the indictment. The jury found Corporon guilty of Count I, which alleged that Corporon had touched C16-788's anus, and Count II, which alleged that Corporon had touched C16-788's sexual organ. The jury found Corporon not guilty of Count III, which alleged that Corporon had touched C16-788's breast. This appeal followed.

         ANALYSIS

         Motion for new trial / right to public trial

         Following his convictions, Corporon filed an amended motion for new trial in which he asserted that he had been denied his right to a public trial. Specifically, Corporon contended that three of his family members had been "excluded" from the courtroom during jury selection when an assistant to defense counsel advised the family members that they could not be present in the courtroom at that time.[2] The motion for new trial was overruled by operation of law. In his first issue, Corporon asserts that the district court abused its discretion in failing to hold a hearing on the motion for new trial. In his second issue, Corporon claims that he should be granted a new trial because he was denied his right to a public trial. Because these issues are related, we address them together.

         We review a trial court's ruling on a motion for new trial, as well as its decision on whether to hold a hearing on the motion, for an abuse of discretion. See Briggs v. State, 560 S.W.3d 176, 183-84 (Tex. Crim. App. 2018); Freeman v. State, 340 S.W.3d 717, 732 (Tex. Crim. App. 2011). "'In so doing, we reverse only when the trial judge's decision was so clearly wrong as to lie outside that zone within which reasonable persons might disagree.'" Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010) (quoting Smith v. State, 286 S.W.3d 333, 349 (Tex. Crim. App. 2009)).

         "The purposes of a new trial hearing are (1) to determine whether the case should be retried or (2) to complete the record for presenting issues on appeal." Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009) (citing Smith, 286 S.W.3d at 338). "Such a hearing is not an absolute right." Id. A trial court abuses its discretion in failing to hold a hearing only "if the motion and accompanying affidavits (1) raise matters which are not determinable from the record and (2) establish reasonable grounds showing that the defendant could potentially be entitled to relief." Id. "This second requirement limits and prevents 'fishing expeditions.'" Id. Although a defendant "need not plead a prima facie case in his motion for new trial, he must at least allege sufficient facts that show reasonable grounds to demonstrate that he could prevail" on the merits of his claim. Id. at 199-200; see also Colone v. State, 573 S.W.3d 249, 260 (Tex. Crim. App. 2019) ("Bare assertions, without supporting factual allegations, are not sufficient to entitle a party to a hearing, and a trial court is not required to hold a hearing to conduct a 'fishing expedition.'").

         In Corporon's motion for new trial, he asserted a violation of his right to a public trial. "The Sixth Amendment of the United States Constitution guarantees an accused the right to a public trial in all criminal prosecutions." Lilly v. State, 365 S.W.3d 321, 328 (Tex. Crim. App. 2012) (citing U.S. Const. amend. VI). If a defendant proves that his right to a public trial was violated, he is entitled to a new trial. See id. at 333.

         To prevail on his claim that he was denied his right to a public trial, Corporon must show that (1) his trial was, in fact, closed to the public and (2) that any such closure was not justified by competing interests. See id. at 328-29 (citing Waller v. Georgia, 467 U.S. 39, 42, 48 (1984)). "When determining whether a defendant has proved that his trial was closed to the public, the focus is not on whether the defendant can show that someone was actually excluded." Id. at 331. "Rather, a reviewing court must look to the totality of the evidence and determine whether the trial court fulfilled its obligation 'to take every reasonable measure to accommodate public attendance at criminal trials.'" Id. (quoting Presley v. Georgia, 558 U.S. 209, 215 (2010)).

         Corporon attached three affidavits to his motion for new trial, one from each of the three family members allegedly excluded from the courtroom. The affidavits indicate that defense counsel or an assistant to defense counsel instructed the family members to leave the courtroom during jury selection, effectively resulting in their "exclusion" from the courtroom at that time. The inquiry is not whether individuals were excluded but whether the district court "fulfilled its obligation to take every reasonable measure to accommodate public attendance" at Corporon's trial. See id. Nothing in the affidavits suggests that the district court failed to fulfill that obligation in this case or was in any way responsible for the removal of Corporon's family members from the courtroom.[3] Cf. Presley, 558 U.S. at 210 (concluding that defendant was denied right to public trial when trial court instructed defendant's family member to leave courtroom during voir dire); Cameron v. State, 490 S.W.3d 57, 58-59, 62 (Tex. Crim. App. 2014) (concluding that defendant was denied right to public trial when trial court prevented spectators from entering courtroom because of security concerns and inadequate seating space in courtroom). Therefore, Corporon's motion and accompanying affidavits fail to "establish reasonable grounds showing that the defendant could potentially be entitled to relief," and a hearing on his motion would amount to nothing more than a "fishing expedition." See Hobbs, 298 S.W.3d at 199-200. Accordingly, on this record, we cannot conclude that the district court abused its discretion in overruling Corporon's motion for new trial without conducting an evidentiary hearing. We similarly cannot conclude that Corporon was denied his right to a public trial.

         We overrule Corporon's first and second issues.

         Article 38.37 hearing

         During trial, the district court admitted extraneous-offense evidence concerning other acts that Corporon allegedly committed against C16-788 and her sister C16-789, under the authority of Article 38.37 of the Code of Criminal Procedure. See Tex. Code of Crim. Proc. art. 38.37, §§ 1(b), 2(b). However, contrary to the requirements of Article 38.37, the district court did not conduct a hearing outside the presence of the jury to determine if the evidence was admissible. See id. § 2-a ("Before evidence described by Section 2 may be introduced, the trial judge must determine that the evidence likely to be admitted at trial will be adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt and conduct a hearing out of the presence of the jury for that purpose.").[4] In his third issue on appeal, Corporon asserts that the failure to conduct an Article 38.37 hearing violated his due-process rights.

         The State argues in response that Corporon failed to preserve this issue for review. We agree. As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion and that the trial court ruled on the request, objection, or motion, either expressly or implicitly. Tex.R.App.P. 33.1(a). "A party satisfies the requirement of a timely trial-level complaint 'if the party makes the complaint as soon as the grounds for it become apparent[.]'" London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016) (quoting Gillenwaters v. State, 205 S.W.3d 534, 537 (Tex. Crim. App. 2006)). "This means 'as soon as the [objecting party] knows or should know that an error has occurred.'" Id. (quoting Hollins v. State, 805 S.W.2d 475, 476 (Tex. Crim. App. 1991)). "The requirement that complaints be raised in the trial court (1) ensures that the trial court will have an opportunity to prevent or correct errors, thereby eliminating the need for a costly and time-consuming appeal and retrial; (2) guarantees that opposing counsel will have a fair opportunity to respond to complaints; and (3) promotes the orderly and effective presentation of the case to the trier of fact." Gillenwaters, 205 S.W.3d at 537.

         Here, the record reflects that Corporon did not object at any point to the failure of the district court to conduct the requisite Article 38.37 hearing. In fact, before the State began questioning C16-789 on the alleged extraneous offenses, the record reflects that the following occurred:

[Prosecutor]: Actually, can we approach, Your Honor?
[The court]: You may.
(At bench)
[Prosecutor]: At this time I'm going to be going into some extraneous conduct with this witness, so I just realized I need to ...

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