597 S.W.3d 546
Tex. App.2020Background
- Ruben Fernandez was tried for aggravated assault with a deadly weapon and family-violence assault (allegedly struck Cynthia Flores with an iron on April 25, 2015); jury convicted and sentenced (40 and 20 years, concurrent).
- Victim Cynthia Flores repeatedly recanted earlier statements, failed to appear at trial, and the State obtained a writ of attachment to secure her (and her daughter A.F. who was subpoenaed) after she was located.
- The trial court held a forfeiture-by-wrongdoing hearing and denied forfeiture but detained Flores under the writ; Flores (and A.F.) ultimately testified; A.F. described numerous extraneous acts of abuse by Fernandez.
- During trial a juror (Garcia) fell ill after opening statements; the court excused him as disabled under article 36.29 and continued with eleven jurors (alternate had been seated earlier when another juror was excused).
- Fernandez appealed raising four issues: alleged improper ex parte communications about the writ, procedural defects in issuance of the writ (and related standing/suppression claim), admission of extraneous-offense evidence (and notice), and the court’s excusal of Juror Garcia.
Issues
| Issue | Plaintiff's Argument (Fernandez) | Defendant's Argument (State) | Held |
|---|---|---|---|
| 1. Ex parte communication re: writ of attachment | Judge engaged in ex parte communications about issuing the writ, violating Canon 3(B)(8) and due process, compromising impartiality | Communication was procedural, not about merits; any error harmless because Fernandez showed no prejudice | Court assumed arguendo but found no probable prejudice or influence on rulings; issue overruled |
| 2. Writ of attachment procedures & exclusion under art. 38.23 | New statutory requirements (arts. 24.12, 24.111) were not followed; testimony should be excluded because writ issuance was defective | State conceded some procedures were not followed but argued Fernandez lacked standing and suppression was not warranted; any defect did not invade defendant's rights | Fernandez lacked standing to assert statutory protections intended for the witness; no suppression; issue overruled |
| 3. Admission of extraneous-offense evidence in guilt phase | A.F.’s testimony about prior bad acts was character-conformity evidence and prejudicial; notice of newly-discovered evidence was untimely | Evidence admissible under art. 38.371 to explain recantation/relationship and rebut defense; notice was timely as rebuttal or harmless because defense had opportunity to cross and was given a recess | Evidence admissible under art. 38.371; even if notice was deficient, admission was harmless given recess, cross-examination and pretrial notices; issue overruled |
| 4. Excusal of Juror Garcia as disabled (art. 36.29) | Court erred by excusing juror without live testimony or hearing and without opportunity to question juror/first responders | Defense waived request for a hearing; court’s on-the-record factual recitation supports discretionary finding of disability | Appellate waiver as to hearing claim; on merits trial court did not abuse discretion—juror’s illness justified excusal; issue overruled |
Key Cases Cited
- Erskine v. Baker, 22 S.W.3d 537 (Tex. App.—El Paso 2000) (reversal for judicial misconduct requires impropriety plus probable prejudice and improper verdict)
- Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App. 2000) (ethical violations alone do not automatically require reversal)
- Chavez v. State, 9 S.W.3d 817 (Tex. Crim. App. 2000) (defendant lacks standing to assert third-party rights where defendant's own rights were not invaded)
- Fuller v. State, 829 S.W.2d 191 (Tex. Crim. App. 1992) (standing to complain of unlawful conduct is personal to the wronged party)
- Colone v. State, 573 S.W.3d 249 (Tex. Crim. App. 2019) (forfeiture-by-wrongdoing doctrine codified and applied in Texas)
- De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009) (abuse-of-discretion review for extraneous-offense admissibility)
- Devoe v. State, 354 S.W.3d 457 (Tex. Crim. App. 2011) (limits on character-conformity use of extraneous offenses)
- Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005) (purpose and harm analysis for Rule 404(b) notice requirement)
- McDonald v. State, 179 S.W.3d 571 (Tex. Crim. App. 2005) (insufficient notice of extraneous offenses is nonconstitutional error reviewed for harm)
- Scales v. State, 380 S.W.3d 780 (Tex. Crim. App. 2012) (standard for juror disability under article 36.29)