Gomez, Cesar
PD-0138-15
| Tex. App. | Apr 17, 2015Background
- Defendant Cesar Gomez was convicted of continuous sexual abuse of a child under 14 and sentenced to life without parole; conviction affirmed by the Twelfth Court of Appeals.
- Victim F.G. testified the abuse began in 2006 and continued through March 2012; she made an outcry in March 2012 and police arrested Gomez, who gave a videotaped confession.
- Police recovered an expensive multi‑camera home surveillance system (one camera aimed at F.G.’s bed) but could not recover archived recordings; two pornographic photos from Gomez’s cellphone (his wife performing oral sex on him) were admitted at punishment as evidence of voyeurism.
- The indictment was amended close to trial to allege continuous sexual abuse with an effective date of September 1, 2007; the trial court interlineated the indictment and later entered a nunc pro tunc judgment changing the offense date to September 1, 2007.
- Gomez argued on appeal (and in his PDR) four primary points: (1) admission of the two photos at punishment was improper; (2) erroneous jury charge language widened the chronological perimeter for the offense; (3) the late amendment to the indictment, and later nunc pro tunc judgment, prejudiced his notice and defense; (4) suppression error — police statements about appointment of counsel after warnings undermined his Miranda/Article 38.22 rights.
Issues
| Issue | Plaintiff's Argument (Gomez) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Admission of two pornographic photos at punishment | Photos were irrelevant and admitted solely to inflame jurors; admission violated Rules 401/402/403. | Photos were probative to show voyeurism and use of surveillance system, contradicting Gomez’s intoxication/limited‑period defense; relevance at punishment is broad. | Affirmed: trial court did not abuse discretion; photos were highly probative on punishment and probative value did not be substantially outweigh prejudice. |
| 2. Jury charge language on nonbinding dates increased chronological perimeter | Charge language allowing conviction based on any time before indictment improperly permitted reliance on acts outside the statutory effective period; prejudiced defense. | Application paragraph correctly limited the charged period (Sept. 1, 2007–Nov. 21, 2011), limiting instruction given, and prosecutor repeatedly explained correct timeframe. | Affirmed: erroneous abstract language existed but, under Almanza egregious‑harm review, charge as a whole, counsel argument, and evidence did not show egregious harm. |
| 3. Amendment of indictment and nunc pro tunc judgment | Late amendment (3 days before trial) and interlineation without adequate time or filing deprived Gomez of notice; nunc pro tunc after notice of appeal was improper and altered operative facts. | State obtained proper amendment process (motion, court order, reading of amended indictment at trial); Gomez pleaded not guilty to amended indictment and had actual notice; nunc pro tunc corrected clerical error to reflect what was rendered. | Affirmed: record shows effective amendment and Gomez had notice; nunc pro tunc corrected a clerical error and was timely and proper. |
| 4. Suppression / Miranda and right to counsel | Interrogator told Gomez a lawyer could be appointed “at a later time,” implying appointed counsel would not be available during interview; this undermined a request for counsel and violated Miranda/Article 38.22 and Sixth Amendment protections. | Translator (Zapata) properly gave Miranda warnings in Spanish; an erroneous, clarifying attorney‑appointment remark did not vitiate an otherwise proper warning; Gomez waived knowingly; claim not properly preserved in motion. | Affirmed: error not preserved; even assuming preservation, the Miranda warnings reasonably conveyed rights and the added statement did not invalidate the warning. |
Key Cases Cited
- Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1990) (standard of appellate review for evidentiary rulings; "zone of reasonable disagreement")
- Erazo v. State, 144 S.W.3d 487 (Tex. Crim. App. 2004) (photograph admissibility at punishment; helpfulness vs. prejudicial effect under Rule 403)
- Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997) (factors for balancing probative value vs unfair prejudice for graphic evidence)
- Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) (two‑step jury‑charge review and "egregious harm" standard for unpreserved charge error)
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (constitutional warnings required before custodial interrogation)
- Duckworth v. Eagan, 492 U.S. 195 (U.S. 1989) (superfluous or imperfect wording in Miranda warnings does not necessarily render them invalid)
- Arizona v. Roberson, 486 U.S. 675 (U.S. 1988) (requests for counsel bar subsequent interrogation without counsel)
- Riney v. State, 28 S.W.3d 561 (Tex. Crim. App. 2000) (amendment of indictment: physical interlineation is acceptable but not required; focus is on defendant's notice of charges)