Cesar Gomez v. State
459 S.W.3d 651
| Tex. App. | 2015Background
- Cesar Gomez was convicted by a jury of continuous sexual abuse of a child younger than 14 and sentenced to life without parole; appeal followed.
- Victim F.G. testified the abuse began in 2006 (age 8) and continued until March 2012 (age 14); she made an outcry in March 2012.
- Police found a multi-camera surveillance system (one camera aimed at F.G.’s bed) and two pornographic photos on Gomez’s cell phone; Gomez admitted recording abuse on at least one occasion and gave a videotaped confession.
- The indictment was amended pretrial to allege the offense period beginning September 1, 2007 (the statute’s effective date); Gomez did not object to proceeding on the amended indictment.
- Gomez raised multiple trial objections on evidentiary, charge, indictment-amendment, nunc pro tunc judgment, Miranda, and other grounds; the court reviewed relevance/prejudice of the photos, jury-charge chronology, indictment amendment procedure, and propriety/timeliness of the nunc pro tunc entry.
Issues
| Issue | Appellant's Argument | State's/Prosecution's Argument | Held |
|---|---|---|---|
| Admissibility of two pornographic photos at punishment (R.401/402/403) | Photos were irrelevant and more prejudicial than probative | Photos show voyeuristic conduct and support proof of regular, planned abuse (contradicts defense intoxication/limited timeline) | Admitted: court found high probative value, limited prejudice, and substantial need; issues 1–4 overruled |
| Jury charge allowed conviction on acts outside statutory chronological perimeter | Abstract instruction permitting conviction for acts before statute effective date or after victim turned 14 could mislead jury | Application paragraph, limiting instructions, prosecutor’s correct explanations, and strong evidentiary proof of abuse within dates mitigated harm | Error in abstract paragraph acknowledged but not reversible; no egregious harm; issue 5 overruled |
| Trial on amended indictment / verdict form (amendment procedure and verdict construction) | Trial court erred by trying defendant on an indictment that originally did not allege continuous abuse or by submitting an unalleged offense to the jury | Amendment was effectively made (motion, oral grant, written order, interlineation, reading of amended indictment, no timely objection); defendant had notice | Amendment effective; submission and conviction under amended indictment lawful; issues 6–8 overruled |
| Judgment nunc pro tunc changing offense date after notice of appeal | Nunc pro tunc was void/timely/improper (judicial correction vs. clerical) and defendant entitled to presence/hearing | Nunc pro tunc corrected clerical error to reflect the judgment actually rendered (amended indictment and charge used correct date); entered before appellate record filed; remand for hearing unnecessary | Nunc pro tunc proper, timely, and not reversible; issues 9–11 overruled |
| Miranda/oral confession statute (Article 38.22) | Interrogator’s statement that appointed counsel would be effective only after interview vitiated Miranda; confession should be suppressed | Miranda warnings were given in Spanish, translated, and defendant waived; a mistaken supplemental remark did not render warnings ineffective | Warnings reasonably conveyed; erroneous follow-up comment did not vitiate Miranda; issue 12 overruled |
Key Cases Cited
- Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (standard of review for evidentiary rulings and Rule 403 balancing presumption favoring admissibility)
- Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004) (photographs admissible if genuinely helpful and emotional/prejudicial aspects do not substantially outweigh probative value)
- Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007) (Article 37.07 expands admissibility at punishment to what is helpful to the jury)
- Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997) (factors for Rule 403 analysis of photographic evidence)
- Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) (amendment of indictment need not be by physical interlineation; defendant must have notice of amended charges)
- Ward v. State, 829 S.W.2d 787 (Tex. Crim. App. 1992) (discusses previous interlineation rule for indictment amendments)
- Kuhn v. State, 393 S.W.3d 519 (Tex. App.–Austin 2013) (considered similar jury-charge chronological perimeter issues and limiting instructions)
- Duckworth v. Eagan, 492 U.S. 195 (U.S. 1989) (superfluous or imperfect Miranda-related language does not necessarily render warning defective)
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (Miranda warning requirements)
- Harrell v. United States, 894 F.2d 120 (5th Cir. 1990) (erroneous supplemental statements do not vitiate otherwise proper Miranda warnings)