Victorio Nepomuceno v. State
03-14-00600-CR
| Tex. App. | Aug 10, 2016Background
- Victorio Nepomuceno was indicted and convicted by a jury for aggravated sexual assault of a child under 14; sentenced to 45 years’ imprisonment.
- Victim (H.C.) testified that Nepomuceno, who babysat him, repeatedly penetrated his anus when H.C. was 8–9 years old.
- H.C.’s sister testified she observed an incident in which she saw Nepomuceno on top of H.C. and was too frightened to intervene initially; she later reported what she saw.
- Police interviewed H.C. at the Nolanville Police Department and then arranged a videotaped interview at a Children’s Advocacy Center (CAC); the videotaped CAC interview was not admitted at trial.
- During closing, the prosecutor argued that defense counsel would have shown discrepancies in the CAC video if there were any; defense objected generally and the trial court overruled.
- On appeal, Nepomuceno argued the prosecutor’s statements improperly bolstered H.C.’s testimony and constituted unsworn testimony; the court affirmed, finding waiver and, alternatively, harmless error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor’s closing remarks improperly referred to evidence not admitted and bolstered witness | State: argument highlighted lack of recorded inconsistency and was permissible commentary | Nepomuceno: remarks referenced a videotaped CAC interview not admitted, improperly bolstering the complainant | Court: Nepomuceno waived by making only a general objection; alternatively, any error was harmless |
| Whether prosecutor’s remarks amounted to offering unsworn testimony | State: remarks were argument/inference, not unsworn testimony | Nepomuceno: prosecutor effectively vouched and offered unsworn facts about what the video would show | Court: waived; alternatively, harmless because same inference was supported by police testimony and strong evidence |
Key Cases Cited
- Davis v. State, 329 S.W.3d 798 (Tex. Crim. App.) (abuse-of-discretion standard for reviewing objections to jury argument)
- Garcia v. State, 126 S.W.3d 921 (Tex. Crim. App.) (preservation of error requirement for objections)
- Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App.) (trial-court abuse-of-discretion standard explained)
- Wilson v. State, 311 S.W.3d 452 (Tex. Crim. App.) (appellate duty to ensure trial preservation before addressing merits)
- Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App.) (non-constitutional improper jury argument analysis)
- Wesbrook v. State, 29 S.W.3d 103 (Tex. Crim. App.) (improper argument is reversible only if extreme, manifestly improper, or injects harmful new facts)
- Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App.) (inadmissible evidence can be harmless if same fact proved elsewhere without objection)
- Anderson v. State, 717 S.W.2d 622 (Tex. Crim. App.) (same principle: other admissible evidence can render inadmissible evidence harmless)