Luna, Eleazar
PD-1256-15
Tex.Nov 3, 2015Background
- Appellant Eleazar Luna was tried on three indictments charging indecency with a child by exposure arising from allegations by a neighbor child (E.S.) that Luna showed pornography, exposed his genitals, and once had the child expose herself; incidents alleged to have occurred between summer (2nd–3rd grade transition) and November 2012.
- A ‘‘mere evidence’’ search warrant for Luna’s residence was obtained after an outcry and a forensic interview; the affidavit described repeated acts and items (pornography, a vibrator, lotion) and characterized the offense as continuous sexual abuse of a child.
- At trial the State presented testimony from the child and her mother; the mother testified to both the initial outcry at home and statements the child made later to a deputy; the defense argued the deputy statements were inadmissible outcry hearsay because the mother was the first adult recipient.
- During voir dire the prosecutor: (1) told jurors the indictment dates were effectively broad (“on or about”) given limitations law, and (2) offered examples / a lay definition of “beyond a reasonable doubt”; defense objected and the trial court overruled.
- The jury convicted Luna on all three counts; punishment resulted in five-year assessments (two suspended and probated); Luna appealed raising voir dire error, suppression (warrant) error, and improper outcry testimony. The Thirteenth Court of Appeals affirmed in a memorandum opinion.
Issues
| Issue | Luna's Argument | State / Court's Argument | Held |
|---|---|---|---|
| Voir dire: prosecutor defined "beyond a reasonable doubt" | Prosecutor improperly defined the term to jurors, which misstates law and interferes with jurors determining the meaning themselves | The prosecutor prefaced remarks by noting the charge leaves the term undefined and asked permissible questions/examples about what reasonable doubt does not mean; voir dire aimed to reveal juror understanding | Court of Appeals: no abuse of discretion; voir dire questioning relevant and permitted |
| Voir dire: prosecutor minimized importance of indictment dates | Prosecutor misstated law by saying dates "effectively don't mean anything" | State explained "on or about" within statute of limitations can cover a broad range; argument was qualified and not an erroneous statement of law | Court of Appeals: no abuse of discretion; argument not improper |
| Suppression: affidavit alleged wrong offense (continuous sexual abuse) / insufficient predicate | Affidavit did not allege facts to support continuous sexual abuse as charged; underlying offense is different and affidavit lacked predicate facts, so probable cause was insufficient | Incorrect legal labeling by affiant does not invalidate a warrant if affidavit contains facts sufficient to infer criminal activity and probable cause for seizable items | Court of Appeals: affidavit valid; magistrate could reasonably find probable cause; Borsari cited to support technical mislabeling not fatal |
| Outcry testimony: mother's testimony about statements to deputy (not first adult) | admission of mother’s testimony recounting child’s statement to deputy was inadmissible under Art. 38.072 (only first adult recipient qualifies) and harmful; harmlessness analysis was inadequate | Court of Appeals assumed error but found it harmless because the child testified to similar facts and was cross-examined; child testimony sufficient to support conviction | Court of Appeals: any error harmless; affirmed. Luna disputes harmlessness analysis and record characterization |
Key Cases Cited
- Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) (better practice to give no jury definition of "reasonable doubt")
- Fuller v. State, 363 S.W.3d 583 (Tex. Crim. App. 2012) (voir dire about jurors' understanding of reasonable doubt is relevant and important when no definition is given)
- Woolridge v. State, 827 S.W.2d 900 (Tex. Crim. App. 1992) (prospective jurors' conceptions of reasonable doubt may be explored in voir dire)
- Borsari v. State, 919 S.W.2d 913 (Tex. App.—Houston [14th Dist.] 1996) (technical mislabeling by affiant concerning the exact offense does not necessarily invalidate a warrant)
- Gonzalez Soto v. State, 267 S.W.3d 327 (Tex. App.—Corpus Christi 2008) (testimony of a child complainant can be sufficient to support conviction for indecency with a child)
- Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) (harmless-error analysis framework for non-constitutional error)
- Haley v. State, 173 S.W.3d 510 (Tex. Crim. App. 2005) (factors appellate courts should consider when assessing harm from non-constitutional error)
- Johnson v. State, 43 S.W.3d 1 (Tex. Crim. App. 2001) (standard for disregarding non-constitutional error that does not affect substantial rights)
- Samaripas v. State, 454 S.W.3d 1 (Tex. Crim. App. 2014) (remand for harm analysis where appellate court failed to recognize error in voir dire)