Court of Appeals of Texas, Third District, Austin
THE 424TH DISTRICT COURT OF LLANO COUNTY NO. CR7543, THE
HONORABLE EVAN C. STUBBS, JUDGE PRESIDING
Justices Goodwin, Baker, and Triana
D. TRIANA, JUSTICE
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.
is the step-grandfather of C16-788, the victim in the
case. 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.
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
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
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.
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.
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.
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
for new trial / right to public trial
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. 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
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)).
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
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.
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
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. 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
overrule Corporon's first and second issues.
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."). In his third issue on appeal, Corporon
asserts that the failure to conduct an Article 38.37 hearing
violated his due-process rights.
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.
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.
[Prosecutor]: At this time I'm going to be going into
some extraneous conduct with this witness, so I just realized
I need to ...