Cesar Augusto Triana v. the State of Texas

Affirmed as Modified and Opinion filed August 27, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00167-CR

CESAR AUGUSTO TRIANA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court
Harris County, Texas
Trial Court Cause No. 1721742

OPINION
A jury found appellant Cesar Augusto Triana guilty of indecency with a child
by contact and assessed his punishment at imprisonment for 16 years. Tex. Penal
Code Ann. §§ 21.11(a)(1); 12.33(a) (felony of second degree). In two issues,
appellant argues that the trial court erred by: (1) not including an instruction to the
jury during punishment that it could not consider extraneous sexual offenses
introduced by the State unless the State proved them beyond a reasonable doubt and
(2) incorrectly assessing consolidated court costs.
Although appellant was entitled to a reasonable-doubt jury instruction as to
consideration of extraneous-offense evidence during the punishment phase of trial,
appellant was not egregiously harmed by the trial court’s omission. With respect to
the court costs, we modify the judgment to correct the consolidated court costs and
as so modified, affirm.
Further, in consideration of our jurisdiction, we hold that the trial court’s
failure to pronounce a $100 fine imposed by operation of law did not deprive
appellant of notice. Tex. Code Crim. Proc. Ann. art. 102.0186. Therefore, this court
has jurisdiction over the appeal.
I. BACKGROUND

The State presented evidence that appellant, then complainant’s stepfather,
touched complainant’s vagina when she was six-, nine-, and 13-years old. In 2020,
complainant made an outcry to her biological mother and stepmother when she was
13-years old.

Although he was charged with one instance of indecency with a child, the trial
court permitted testimony by complainant not only of the charged offense, but also
of extraneous offenses that included repeated sexual contact from appellant over the
course of several years. Complainant testified that appellant would regularly enter
her room when her mother was not home and insert his fingers into her vagina or
touch her body under her clothes. She also testified that when she was 13-years old
appellant attempted to put his penis in her mouth.

II. JURISDICTION

We first address our own jurisdiction over this appeal. After the jury verdict
was read, the trial court pronounced sentence stating: “[A]t this time I sentence you
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to 16 years in the Texas Department of Criminal Justice and remand you to the
custody of the sheriff.” The jury did not assess any discretionary fine permitted by
Penal Code section 12.33. Tex. Penal Code Ann. § 12.33. However, the judgment of
conviction includes a $100 fine, added by operation of law. See Tex. Code Crim.
Proc. Ann. art. 102.0186.

The court of criminal appeals held in 2003 that a trial court’s failure to orally
pronounce sentence means there is no judgment and no “conviction” that can be
appealed. Thompson v. State, 108 S.W.3d 287, 290 (Tex. Crim. App. 2003). 1 This
court has followed Thompson concluding that we lacked subject-matter jurisdiction
over a defendant’s attempted appeal based on the trial court’s failure to pronounce
the sentence in the defendant’s presence. Meachum v. State, 273 S.W.3d 803, 805–
06 (Tex. App.—Houston [14th Dist.] 2008, order). 2

The trial court is required to pronounce sentence in defendant’s presence. Tex.
Code Crim. Proc. Ann. art. 42.03, § 1(a). As a general rule, when the oral
pronouncement of a sentence and the written judgment vary, the oral pronouncement
controls. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim. App. 2004); Lopez
v. State, 515 S.W.3d 547, 549 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).
And the authority for courts of appeal to correct such errors in the judgment (a
judgment nunc pro tunc)—without either (1) preservation of error in the trial court

1
Assuming the Marin classification applies to subject-matter jurisdiction, then it is
category one. Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993) (“Thus, our system
may be thought to contain rules of three distinct kinds: (1) absolute requirements and prohibitions;
(2) rights of litigants which must be implemented by the system unless expressly waived; and
(3) rights of litigants which are to be implemented upon request.”); see Proenza v. State, 541
S.W.3d 786, 795 (Tex. Crim. App. 2017) (fundamental errors in criminal appeals are simply
category-one and -two Marin errors).
2
See also 43B George E. Dix & John M. Schmolesky, Texas Practice: Criminal Practice
and Procedure § 56:32 (3d ed. 2011 & Supp. 2023) (discussing “Need for record to reflect
imposition of sentence” as well as statutory history); Id. § 56:34 (requirement of proper
“sentence”).

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(Texas Rule of Appellate Procedure 33.1(a)) or (2) presentation of an issue or point
of error in the brief on appeal (Texas Rule of Appellate Procedure 38.1(f))—derives
from our duty to modify the judgment to “make the record speak the truth.” French
v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992) (adopting reasoning of
Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas 1991, pet. ref’d) (en
banc) (Onion, J., retired presiding judge of Court of Criminal Appeals, sitting by
designation and writing en banc court’s opinion); Tex. R. App. P. 33.1(a), 38.1(f).
In a criminal case, Texas Rule of Appellate Procedure 43.2(b) functions in part as a
means for the appellate court to render judgment nunc pro tunc when the written
judgment does not reflect what occurred in open court at trial. Tex. R. App. P.
43.2(b).

However, this case does not present a situation in which no sentence was
orally pronounced in the defendant’s presence in open court. The trial court
pronounced all but the statutorily required fine. The court of criminal appeals has
held that when “[t]he jury’s verdict imposed a lawful fine within the permissible
statutory range, and its verdict was read aloud in court in [defendant’s] presence,”
the fine may be properly imposed despite the trial judge’s failure to orally pronounce
it. Ette v. State, 559 S.W.3d 511, 515–17 (Tex. Crim. App. 2018). Because the $100
fine is statutorily required and failure to impose the statutory fine would result in an
illegal sentence, we hold that the lack of pronouncement of sentence in open court
of the required $100 fine in this case does not implicate the due-process and
due-course-of-law notice issues that would occur if a discretionary fine were neither
(1) assessed and read aloud in court, nor (2) orally pronounced in open court as part
of the sentence. Although the trial court erred in not pronouncing the statutory fine,
the error was harmless and does not deprive this court of subject-matter jurisdiction

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over the appeal. 3

III. ANALYSIS

A. Jury-charge error

In issue 1, appellant argues the trial erred by failing to instruct the jury sua
sponte regarding the standard of proof applicable to extraneous offenses and bad acts
in the punishment phase of trial.

1. Standard of review

A review of alleged jury-charge error involves a two-step analysis. Ngo v.
State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d
726, 731–32 (Tex. Crim. App. 1994). First, we must determine whether the charge
contains any actual error; second, if there is actual error, we must determine whether
the error resulted in sufficient harm to require reversal. Ngo, 175 S.W.3d at 744;
Abdnor, 871 S.W.2d at 731–32. If the defendant preserved the error by timely
objecting to the charge, an appellate court will reverse so long as the defendant
demonstrates that he suffered some harm. Sakil v. State, 287 S.W.3d 23, 25–26 (Tex.
Crim. App. 2009). By contrast, if a defendant does not properly preserve error by
objection, any error in the charge “should be reviewed only for ‘egregious harm’
under Almanza.” Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007)
(citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984 & 1985)).

2. Applicable law

Code of Criminal Procedure article 37.07, section 3(a)(1) provides,

Regardless of the plea and whether the punishment be assessed by the
judge or the jury, evidence may be offered by the state and the

3
Our holding here modifies this court’s precedent in Meachum regarding statutorily
required fines that are not pronounced in open court.

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defendant as to any matter the court deems relevant to sentencing,
including but not limited to the prior criminal record of the defendant,
his general reputation, his character, an opinion regarding his character,
the circumstances of the offense for which he is being tried, and,
notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other
evidence of an extraneous crime or bad act that is shown beyond a
reasonable doubt by evidence to have been committed by the defendant
or for which he could be held criminally responsible, regardless of
whether he has previously been charged with or finally convicted of the
crime or act.

Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1). Because “Article 37.07 is ‘the law
applicable’ to all non-capital punishment proceedings[,] . . . the trial judge must sua
sponte instruct the jury at the punishment phase concerning that law, including the
fact that the State must prove any extraneous offenses beyond a reasonable doubt.”
Delgado v. State, 235 S.W.3d 244, 252 (Tex. Crim. App. 2007); Huizar v. State, 12
S.W.3d 479, 484 (Tex. Crim. App. 2000); see also Tex. Code Crim. Proc. Ann. art.
36.14 (trial court shall include in jury charge “the law applicable to the case”). The
trial court has the responsibility to provide a reasonable-doubt instruction sua sponte.
See Huizar, 12 S.W.3d at 483–84.

3. Harm analysis

The trial court did not include a reasonable-doubt instruction as to
consideration of extraneous-offense evidence in the punishment charge. Therefore,
the trial court erred.

Having found charge error, we next analyze whether the error caused
appellant to suffer egregious harm. “An egregious harm determination must be based
on a finding of actual rather than theoretical harm.” Cosio v. State, 353 S.W.3d 766,
777 (Tex. Crim. App. 2011). “To be reversible, any unpreserved jury-charge error
must result in egregious harm which affects the very basis of the case, deprives the
defendant of a valuable right, or vitally affects a defensive theory.” Olivas v. State,

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202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (citation and internal quotation marks
omitted). In Almanza, the court of criminal appeals outlined four factors that
reviewing courts should consider when determining whether a jury-charge error
resulted in egregious harm: “[T]he actual degree of harm must be assayed in light of
the entire jury charge, the state of the evidence, including the contested issues and
weight of probative evidence, the argument of counsel and any other relevant
information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at
171.

The entire jury charge

First, we consider the entire jury charge. The punishment charge did not
include an instruction about the State’s burden of proof regarding extraneous-offense
evidence. However, the guilt-innocence charge did contain a correct instruction as
to the burden of proof for consideration of extraneous-offense evidence. The
punishment charge also included the following instruction: “The burden of proof in
all criminal cases rests upon the State throughout the trial and never shifts to the
defendant.” The jury was further instructed that they “may take into consideration
all the facts shown by the evidence admitted before you in the full trial of this case
and the law as submitted to you in this charge.”

We conclude the lack of a specific burden-of-proof instruction on
extraneous-offense evidence in the punishment charge is a consideration that weighs
neither for nor against the conclusion that appellant suffered egregious harm. See
Loge v. State, 550 S.W.3d 366, 384 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(lack-of-reasonable-doubt instruction in punishment phase not egregious harm when
“the charge generally told the jury that the State had the burden of proof throughout
the trial”); Cf. Zarco v. State, 210 S.W.3d 816, 827 (Tex. App.—Houston [14th
Dist.] 2006, no pet.) (no egregious harm in absence of reasonable-doubt instruction

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although no new evidence was received in punishment phase).

The state of the evidence

Next, we evaluate the state of the evidence. In determining whether the charge
error caused actual harm, we consider whether the extraneous evidence received
during the punishment phase was “clear, strong, direct and unimpeached” such that
the jury charge “would not have made a difference in how the jury considered the
evidence.” Martinez v. State, 313 S.W.3d 358, 368 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d).

At the guilt-innocence phase of the trial, the State introduced testimonial
evidence from complainant, who described how appellant repeatedly sexually
abused her. This testimony was consistent with statements she made to her
stepmother, forensic interviewer, and pediatric nurse. The forensic interviewer stated
that complainant was certain about what had happened to her and that she did not
appear to be coached. Appellant did attempt to impeach her by highlighting the
inconsistency of her pretrial statement that the abuse began when she was about 8- or
9-years old and what she testified to at trial, which is that she was 6-years old when
the abuse began. These contradictory statements were mitigated by the testimony of
the forensic interviewer for this case, who testified that it was rare for a child to give
a specific age for when the abuse occurred.

Appellant presented one witness in the guilt-innocence phase, his nephew;
however, that testimony did not contradict or challenge complainant’s testimony.
Rather, appellant’s nephew testified that he lived with appellant on three occasions
for a period approximating 16-months total. However, the sexual abuse took place
over a period of seven years, and appellant’s nephew did not sleep in the same room
as complainant, nor was he in appellant’s bedroom in the mornings. Although he
testified that he did not witness anything inappropriate while he lived with appellant;
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this testimony does not contradict complainant’s testimony, as she stated that the
abuse would occur when she was alone with appellant in either his or her bedroom.

Complainant’s testimony supporting the charged offense was the same
evidence supporting the extraneous offenses. This fact also weighs against a
conclusion of egregious harm because if the jury believed complainant’s testimony
about the charged offense, then it is reasonable to conclude that the jury likewise
believed that her testimony was credible as to the extraneous offenses. Appellant did
not present any evidence that impeached complainant’s testimony about the repeated
sexual abuse.

Considering the “clear, strong, direct and unimpeached” testimony presented
by complainant, we conclude it is unlikely an extraneous-offense instruction would
have changed how the jury considered the evidence. See Martinez, 313 S.W.3d at
368. It is, therefore, less likely that the jury-charge error caused appellant harm. See
Cosio, 353 S.W.3d at 778. Given the record, we conclude the second factor weighs
against a conclusion of egregious harm.

The parties’ arguments

We next consider whether either parties’ arguments during the trial
“exacerbated or ameliorated error in the charge.” Arrington v. State, 451 S.W.3d
834, 844 (Tex. Crim. App. 2015). Here, the record shows neither party referenced
nor misstated the State’s burden of proof regarding the extraneous evidence.

Appellant’s closing argument focused on seeking the minimum sentence and
like the appellant in Martinez, failed to “mount any serious challenge to the existence
of the unadjudicated extraneous offenses.” Id. at 369. His closing arguments did not
dispute the evidence the State presented in its case. The State’s closing argument
after the punishment phase addressed almost exclusively the extraneous offenses and

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the cumulative impact on complainant. However, all the evidence argued by the
State in its punishment-phase closing arguments had already been raised in the guilt-
innocence phase of trial.

Considering the foregoing, we conclude that the arguments of counsel weigh
against a holding of egregious harm. See Loge, 550 S.W.3d at 385.

Other relevant information

Among the other relevant information that we can consider is the severity of
the punishment assessed. See id. Here, appellant was sentenced to imprisonment for
16 years, which was less than the statutory maximum punishment. See Tex. Penal
Code Ann. § 12.33(a). We conclude the severity of the sentence does not weigh in
favor of a conclusion that appellant suffered egregious harm.

No egregious harm shown

Applying the egregious-harm standard to this record, we conclude that a
review of all relevant factors does not show that appellant was egregiously harmed
by the omission of a reasonable-doubt instruction regarding evidence of the
extraneous offenses. See Huizar v. State, 29 S.W.3d 249, 250–51 (Tex. App.—San
Antonio 2000, pet. ref’d) (concluding that error in failing to instruct the jury at
punishment on reasonable-doubt standard concerning extraneous offenses did not
constitute egregious harm, even though State “relied on substantial evidence of
extraneous conduct in seeking punishment,” State “commented during the State’s
closing argument that the State had no burden of proof during the punishment trial,”
and jury assessed 99-year punishment). The charge error did not affect the very basis
of the case, deprive appellant of a valuable right, or vitally affect a defensive theory.
Therefore, the trial court’s error was not so egregious as to deprive appellant of a
fair and impartial trial. See id.

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We overrule issue 1.

B. Court costs

In issue 2, appellant contends the trial court erred in imposing $185.00 for the
consolidated court costs instead of $133.00, the amount authorized under the statute
in effect at the time of the offense. The trial court’s judgment identified the date of
the offense as November 15, 2015 and the State does not challenge the judgment on
this date. See Act of June 2, 2003, 78th Leg., R.S., ch. 209, § 62(a), sec.
133.102(a)(1), 2003 Tex. Gen. Laws 979, 993, 996 (“A person convicted of an
offense shall pay as a court cost, in addition to all other costs: (1) $133 on conviction
of a felony . . . .”) (Local Government Code § 133.102(a)(1), amended by Act May
of 23, 2019, 86th Leg., R.S., ch. 1352, § 1.03, sec. 133.102(a)(1) (changing “$133”
to “$185”), sec. 5.01 (“Except as otherwise provided by this Act, the changes in law
made by this Act apply only to a cost, fee, or fine on conviction for an offense
committed on or after the effective date of this Act. An offense committed before
the effective date of this Act is governed by the law in effect on the date the offense
was committed, and the former law is continued in effect for that purpose. For
purposes of this section, an offense was committed before the effective date of this
Act if any element of the offense occurred before that date.”), 2019 Tex. Gen. Laws
3981, 3982, 4035.

We hold that the trial court erred in imposing $185.00 in consolidated court
costs for a November 15, 2015 offense that occurred before the January 1, 2020
effective date of the 2019 amendment to Local Government Code § 133.102(a)(1).
See Act of May 23, 2019, 86th Leg., R.S., ch. 1352, § 5.04, 2019 Tex. Gen. Laws
3981, 4035. We sustain issue 2.

IV. CONCLUSION
We modify the trial court’s judgment to reflect an assessment of $133.00 in
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consolidated court costs, which decreases the total costs by $52.00. As so modified,
we affirm the judgment of the trial court as challenged on appeal. See Tex. R. App.
P. 43.2(b); Wiggins v. State, 622 S.W.3d 556, 561–62 (Tex. App.—Houston [14th
Dist.] 2021, pet. ref’d).

/s/ Charles A. Spain
Justice

Panel consists of Justices Wise, Spain, and Hassan.

Publish — Tex. R. App. P. 47.2(b)

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