Hector Perez v. State

Citation: Not availableDocket: 13-11-00761-CR

Court: Court of Appeals of Texas; August 30, 2012; Texas; State Appellate Court

Original Court Document: View Document

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The appeal involves Eugene Mercier challenging the State of Texas, following multiple prior appeals. In the second appeal (Mercier II), the court found the State's indictment to be substantively defective and reversed the prosecution without requiring a harm analysis. The Court of Criminal Appeals concurred with this finding but remanded the case for the appellate court to conduct a harm analysis regarding the indictment's defect. The current memorandum opinion addresses this remand, necessitating an evaluation of whether the defect caused harm sufficient to warrant reversal, as per TEX. R. APP. P. 44.2(b). 

The analysis focuses on two aspects of substantial rights related to charging defects: (1) the right to know the nature and cause of the accusation and (2) the right to receive this information clearly from the charging instrument. The court emphasizes that the defendant must demonstrate how substantial rights were harmed and the impact of any lack of notice on the ability to prepare a defense. The inquiry will conclude if it is determined that adequate notice was provided; otherwise, the court will assess the extent of the impact on defense preparation. This approach aligns with established legal precedents regarding the necessity of proper notice in criminal cases.

Mercier argues that prosecuting him despite a defect in the indictment violates legislative mandates concerning statutes of limitations, which serve to protect defendants by preventing prosecutions based on stale evidence, mitigating the risk of blackmail, and ensuring fair trial conditions. The initial indictment was valid as it fell within the three-year statutory limitations period for charging, while the subsequent re-indictment was invalid due to the State's failure to plead tolling factors. However, automatic reversal is not mandated; instead, the court evaluates for harm, specifically whether Mercier had adequate notice to prepare his defense despite the defect. The court finds that Mercier did receive sufficient notice from the initial indictment, which included the same counts as the re-indictment. The jury was also instructed to consider the timing of the offense concerning the limitations period. Since Mercier did not demonstrate prejudice to his substantial rights and was afforded a meaningful limitations defense at trial, the defective re-indictment is deemed harmless error. Consequently, Mercier’s first four issues are overruled.

Mercier raises two primary issues on appeal: (1) the legality of his sentencing on March 23, 2006, and (2) the trial court's denial of his motion for a new trial. The State cross-appeals, arguing that the trial court improperly set aside its original judgment and imposed a lower sentence on May 26, 2006. Mercier contends that the trial court was required to reinstate the jury's verdict before sentencing him on March 23, and that this sentencing order is void, making the May 26 order controlling. Conversely, the State argues that the trial court's plenary power expired before the May 25 hearing, thus rendering the May 26 order void and affirming the March 23 order as valid.

The March 23, 2006 oral pronouncement included a two-year state jail sentence followed by five years of probation, a $7,500 fine, and other conditions. Mercier's counsel then requested a sentence reduction based on legal precedent. The trial court held hearings on May 16 and May 25, 2006, ultimately modifying the sentence to six months of imprisonment probated for two years.

The legal framework stipulates that a defendant's sentence begins on the date pronounced, and if there is a discrepancy between the oral sentence and the written judgment, the oral pronouncement prevails. The court determined that the trial court correctly reinstated the jury verdict and imposed the sentence on March 23. Although the trial court did not immediately rule on Mercier's request to modify the sentence, it retains the power to do so for thirty days following the sentencing if a motion is filed. The conclusion drawn is that the March 23 sentence was valid, and Mercier's motion to modify was timely filed.

Mercier’s amended motion for a new trial was timely filed within thirty days of the March 23 order, allowing the trial court to modify his sentence on May 26, 2006, under Texas Rule of Appellate Procedure 21.4. The modified sentence adhered to the statutory range for a state jail felony and was pronounced in open court with all relevant parties present, confirming the trial court acted within its authority and proper procedures. Consequently, the trial court did not err in its rulings on March 23 or May 26, 2006. Mercier's first issue was partially sustained and partially overruled, while the State’s cross-issue was overruled.

In his final issue, Mercier claimed the trial court erred by overruling his motion for new trial due to the alleged withholding of favorable evidence by the State. He argued that the evidence would have revealed that his co-conspirator, Kenneth Plambeck, paid witnesses Charlie Mora and Angelica Rhodes to illegally solicit accident victims, impacting the trial's outcome and his due process rights as defined in Brady v. Maryland. 

At the hearing for the motion for new trial, testimonies were presented from several witnesses, including Texas Rangers Rodolfo C. Jaramillo and Israel Pacheco, defense attorney Ricardo Salinas, and State prosecutor Sofia Arizpe. Ranger Jaramillo discussed his investigation into Rhodes, indicating he had no prior knowledge of Mercier during the investigation, which focused on bribery in Cameron County. Ranger Pacheco's investigation pertained to Mora following Rhodes's arrest for bribery, and he confirmed that Rhodes’s cooperation was not used against Mercier. Salinas testified that access to Ranger Jaramillo's investigation report prior to the conviction could have altered the trial's outcome.

Attorney Salinas recalled that a significant portion of pre-trial discovery was located in the Hidalgo County District Attorney’s office, where he spent several hours reviewing evidence related to the Rhodes case and Mora’s pending indictment. However, he admitted to lacking specific details about the Rhodes case. Salinas asserted that evidence indicated all actions were conducted by Plambeck, and argued that had this Brady evidence been presented, it would have shown that Mercier was not committing barratry but that Plambeck was breaching telemarketing and chiropractor statutes. Prosecutor Sofia Arizpe testified that she considered the Jaramillo and Pacheco Reports of Investigation (ROIs) irrelevant to Mercier’s prosecution, lacked full knowledge of the Rhodes bribery investigation, and did not categorize it as Brady material. Arizpe also claimed that while the information leading to Mercier's indictment was provided to the defense, she was unaware of the Jaramillo ROI. 

The text further explains that the decision to grant or deny a new trial is at the trial court's discretion, and appellate courts do not substitute their judgment unless the trial court's decision is arbitrary or unreasonable. A prosecutor has a duty to disclose favorable evidence to the defense, and a Brady claim requires proof that the prosecutor failed to disclose evidence that was favorable and material, which would likely have changed the trial's outcome. Mercier contended that the Jaramillo and Pacheco ROIs were not disclosed; however, the State argued that its obligation to disclose only applies if the evidence was in its possession or known to exist. The State's prosecutor testified she was unaware of the information given to local investigators, hence had no obligation to disclose it. Even if the State had failed to disclose the reports, the trial court might have deemed the evidence unfavorable to Mercier.

Favorable evidence can significantly influence the outcome of a trial, potentially swaying a verdict from conviction to acquittal. This evidence includes exculpatory evidence, which clears the defendant of guilt, and impeachment evidence, which disputes the prosecution's claims. In the case referenced, the evidence concerning Rhodes—an employee of Mercier—was examined, particularly regarding allegations of bribing Department of Public Safety officials for accident reports. The trial court had the discretion to determine whether this evidence was favorable to Mercier; it concluded that even if the evidence had been disclosed, it likely would not have changed the trial's outcome. Mercier argued that knowledge of alleged bribery by others would have led the jury to acquit him, as it could have bolstered his defense against conspiracy charges. However, the court found that such evidence could have weakened his position or been disregarded, particularly as it pertained to charges not included in Mercier's indictment. Ultimately, the trial court acted within its discretion in denying Mercier’s motion for a new trial, and the judgment was affirmed.