Kelvin Noel Valladarez-Martinez v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-23-00049-CR
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KELVIN NOEL VALLADAREZ-MARTINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

________________________________________________________________________

On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 20-10-12100-CR
________________________________________________________________________

MEMORANDUM OPINION

Kelvin Valladarez-Martinez (“Valladarez-Martinez”) was convicted of

continuous sexual abuse of a young child and sentenced to life imprisonment in the

Institutional Division of the Texas Department of Criminal Justice. Tex. Penal Code

Ann. § 21.02(b). In two appellate points, he challenges his conviction, arguing that

the trial court deprived him of due process of law by “commenting upon the weight

of the evidence” and by “limit[ing] Appellant’s right to confrontation[,]” in violation

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of the due process clause of the United States Constitution and Texas Constitutions.

Finding no reversible error, we affirm the trial court’s judgment.

Background

Valladarez-Martinez was charged with continuous sexual abuse of his

daughter, Kristi (8 years old at the time of the assaults), and his stepdaughter,

Suzanne (12 years old at the time of the assaults).1 Multiple witnesses testified,

including Kristi, Suzanne, their brother Javier, and their mother. Valladarez-

Martinez also testified in his own defense. We consider the evidence in the light

most favorable to the verdict, and summarize the relevant trial testimony below.

A. Kristi and Suzanne’s Testimony

Kristi and Suzanne described Valladarez-Martinez’s years-long sexual abuse,

recalling that the abuse often took place during the early morning hours, after their

mother had left for work. They also testified that their brother Javier sometimes slept

in the same room with them.

1
We use pseudonyms to refer to the victims and their family members to
conceal their identities. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the
right to be treated with fairness and with respect for the victim’s dignity and privacy
throughout the criminal justice process[.]”). See Smith v. State, No. 09-17-00081-
CR, 2018 WL 1321410, at *1 n.1 (Tex. App.—Beaumont Mar. 14, 2018, no pet.)
(mem. op., not designated for publication).
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Kristi stated that she did what she could to protect Suzanne from her father’s

abuse, including covering her with blankets in the bed the girls shared and trying to

physically block Valladarez-Martinez’s access to Suzanne.

The girls testified about when they told their mother about the abuse. Kristi

explained that they told their mother on the same day that Suzanne “might have

[been] caught doing drugs.” Kristi then “realized [Suzanne] was also telling mom

the reason why she was doing [drugs].” When their mother asked Kristi whether she

also had been victimized, she denied it. During Defendant’s cross-examination of

Kristi, the following exchange took place:

[DEFENSE ATTORNEY]: Okay. Well, then we get to the part where
your sister makes the outcry to your mother, right?

[KRISTI]: Yes.

[DEFENSE ATTORNEY]: And your mother turns to you and asks: Did
it happen to you? And what was your response?

[KRISTI]: I said no.

[DEFENSE ATTORNEY]: Why? And it had happened to you, hadn’t
it?

[KRISTI]: Yes.

[DEFENSE ATTORNEY]: According to your testimony?

[KRISTI]: Yes.

[DEFENSE ATTORNEY]: On multiple occasions?

[KRISTI]: Yes.
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[DEFENSE ATTORNEY]: Why would you tell your mother “no” if
your sister was telling the truth?

[KRISTI]: Because I didn’t care about me. All I wanted to do was to
protect her.

[DEFENSE ATTORNEY]: Wouldn’t it have made more sense to tell
the truth?

[KRISTI]: I was too scared.

[DEFENSE ATTORNEY]: Why? Your sister was telling the truth.

[THE STATE]: Objection; badgering.

THE COURT: I am going to sustain as to tone. If you could rephrase
the question and make it less confrontational a little bit. I don’t think
the question itself is badgering. I think the tone is somewhat.

[DEFENSE ATTORNEY]: Yes, Your Honor.

THE COURT: She may answer the question if she knows.

[DEFENSE ATTORNEY]: Yes, Your Honor.
Let’s go to the next question.

Defense counsel did not rephrase his question as the trial court suggested but

then asked about Kristi’s outcry to her math teacher that she was being “sexually

abused.”

B. Javier’s Testimony

Javier testified that he saw Valladarez-Martinez get into bed with Kristi and

Suzanne when he slept in the same room with his sisters. Due to his young age,

however, he ascribed no significance to this activity. He explained his failure to

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previously report his father’s visits to the bedroom by noting that nobody specifically

asked him about it.

C. Mother’s Testimony

Kristi’s and Suzanne’s mother testified that she was unaware of the girls’

allegations of sexual abuse until after Child Protective Services intervened. She

denied that Suzanne previously reported the abuse to her.

D. Defendant’s Testimony

Valladarez-Martinez denied the accusations. He testified that he often drove

Mother to work in the mornings. Like some of the other witnesses, Valladarez-

Martinez described the sleeping arrangements in the different homes where the

family resided.

E. Other Testimony

The jury also heard testimony from investigating officers and experts,

including the nurse who performed a forensic sexual assault examination on Kristi

and Suzanne. One of these witnesses was Danielle Madera, Ph.D., a psychologist

with expertise in child sexual abuse. Dr. Madera testified about behavior common

in child sexual abuse victims, including reasons that a victim might not report the

abuse or might recant an accusation.

Another witness, Kelly Garcia, conducted forensic interviews with Kristi,

Suzanne, and Javier. She described her training and experience in her field, as well

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as the purpose and procedure of a forensic interview. During a bench conference

addressing Javier’s interview, the trial court directed defense counsel not to “take a

tone with her.”

Analysis

A. The Trial Court’s Comments

In his brief, Valladarez-Martinez states that the trial court “repeatedly

instructed his counsel to watch his tone with multiple witnesses.” The trial court

twice reminded defense counsel to be careful of his tone. He now argues that these

warnings constituted impermissible comments on the weight of the evidence, and

therefore violated his right to due process of law by depriving him of a “neutral,

detached” judge.

Article 38.05 of our Code of Criminal Procedure provides that when ruling on

the admissibility of evidence, a trial court “shall not discuss or comment upon the

weight of the same or its bearing in the case, but shall simply decide whether or not

it is admissible.[]” Tex. Code Crim. Proc. art. 38.05; see Costilla v. State, 650

S.W.3d 201, 218 (Tex. App.—Houston [1st Dist.] 2021, no pet.). We review such

complaints under a de novo standard of review (noting that allegedly impermissible

comments are a question of law). Id. A violation of 38.05 requires the appellate court

to reverse if the trial court’s comment was reasonably calculated to benefit the State

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or prejudice the defendant’s rights. See Proenza v. State, 541 S.W.3d 786, 791 (Tex.

Crim. App. 2017); Costilla, 650 S.W.3d at 218.

The trial court’s initial warning about defense counsel’s tone took place at the

bench, out of the hearing of the jury. Because comments made outside the jury’s

hearing cannot have affected Defendant’s right to a fair trial, and therefore cannot

constitute reversible error, we need not decide whether this comment was improper.

See Costilla, 650 S.W.3d at 219; see also Baca v. State, 223 S.W.3d 478, 482 (Tex.

App.—Amarillo 2006, no pet.) (noting that events outside the jury’s presence are

not error).

The jury did, however, hear trial court’s second comment sustaining the

State’s objection to defense counsel’s tone. In order to constitute an impermissible

comment on the weight of the evidence, the court’s statement would have to be not

only improper but would have to be reasonably calculated to benefit the State or

prejudice the defendant’s rights. Proenza, 541 S.W.3d at 791.

The trial court responded to an objection for “badgering” made by the

opposing counsel to which the court responded that it was not badgering but the tone

of the question was improper. We conclude the complained-of statement did not

violate Article 38.05 because it was not reasonably calculated to benefit the State or

prejudice the defendant’s rights. See Barron v. State, 630 S.W.3d 392, 405-10 (Tex.

App.—Eastland 2021, pet. ref’d).

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Considering that a trial court enjoys “broad discretion to control the business

of the court and in how he preserves proper order and decorum[,]” and further

considering that not every critical remark will support a finding of bias, we cannot

hold that the trial court’s warning about counsel’s tone constituted an impermissible

comment on the evidence. Simpson v. State, 447 S.W.3d 264, 266 (Tex. Crim. App.

2014); see also Barron, 630 S.W.3d at 406 (discussing the standard applied to

alleged comments on the weight of the evidence). The record shows the court was

maintaining courtroom decorum. In fact, when we compare the Barron court’s

remarks to those in the instant case, we see that the Barron court’s statements were

more potentially problematic than the comparatively mild directive to defense

counsel to watch his tone. In short, because the Barron court’s comments did not

rise to the level of reversible error, neither does the trial court’s statement in this

case. See Barron, 630 S.W.3d at 406-07; see also Celis v. State, 354 S.W.3d 7, 24

(Tex. App.—Corpus Christi-Edinburg 2011, aff’d, 416 S.W.3d 419) (Tex. Crim.

App. 2013) (quoting Liteky v. U.S., 510 U.S. 540, 554 (1994)) (A judge’s efforts in

courtroom administration is not a “valid basis for finding judicial bias, even if they

displayed or included ‘expressions of impatience, dissatisfaction, annoyance, and

even anger.’”).

We further observe that when considered in the context of the entire record,

the trial court’s warning was harmless if it was erroneous. See Ex parte Scott, 541

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S.W.3d 104, 125 (Tex. Crim. App. 2017) (noting that a trial court’s comment is

considered reversible error “only if the comment was ‘reasonably calculated to

prejudice the defendant’s rights’”) (citation omitted); see also Trung The Luu v.

State, 440 S.W.3d 123, 129 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

(requiring a review of the entire record when evaluating any harm allegedly caused

by judicial comments) (citation omitted). The entire record in this case consists of

four volumes of testimony and contains only one such warning in the jury’s

presence. We cannot say that the trial court’s statement was “‘calculated to prejudice

the defendant’s rights.’” Ex parte Scott, 541 S.W.3d at 125. Valladarez-Martinez

admitted as much by acknowledging that “nothing suggests the trial court intended

any adverse consequences[.]”

We overrule Appellant’s initial point of error.

B. Confrontation

Valladarez-Martinez argues that the trial court denied him his right to confront

witnesses against him.

The Sixth Amendment to the United States Constitution guarantees that “[i]n

all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with

the witnesses against him.” U.S. CONST. amend. VI.

A Confrontation Clause violation, when it occurs, is constitutional error

subject to a harm analysis under Rule 44.2(a) of the Texas Rules of Appellate

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Procedure. See Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App. 2010);

Tex. R. App. P. 44.2(a).

To preserve error for appellate review, including a constitutional error, the

appellant must make a timely, specific objection to the trial court and obtain a ruling

on the objection. Tex. R. App. P. 33.1; Linney v. State, 401 S.W.3d 764, 772-73

(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). Moreover, the point of error on

appeal must correspond to the objection made at trial. Linney, 401 S.W.3d at 773

(citing Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995)). Valladarez-

Martinez did not satisfy this standard.

On appeal, Valladarez-Martinez contends that the trial court violated his right

to due process of law by limiting his right to confront witnesses against him. He

bases this allegation on the trial court’s exclusion of evidence of Suzanne’s alleged

drug use and the trial court’s warning about defense counsel’s tone during Kristi’s

cross-examination. At trial, however, he made no such objection. Instead, he

accepted the trial court’s ruling excluding cross-examination about Suzanne’s

alleged drug use, and objected to the court’s warning about tone only because he

considered it an “improper comment on [his] ability as a lawyer.” In neither instance

did defense counsel make a specific objection claiming to have been denied the

constitutional right to confront the witnesses against his client. Tex. R. App. P.

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33.1(a)(1)(A); Linney, 401 S.W.3d at 773. Valladarez-Martinez therefore has failed

to preserve error as to his Sixth Amendment complaint. Id.

Even had Valladarez-Martinez properly preserved error as to his current

confrontation clause complaint, we would affirm his conviction because he has

failed to show harm.. Tex. R. App. P. 44.2(a); see Scott, 541 S.W.3d at 125 (applying

the harmless error rule to a trial court’s comments); see also Robison v. State, 461

S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d) (citations

omitted) (noting that exclusion of cumulative evidence is harmless). The excluded

evidence of Suzanne’s alleged drug use is rendered harmless by Kristi’s testimony

on the same subject. Id. The court’s cautionary statement about tone, if error, was

likewise harmless for the reasons set forth above.

We overrule Appellant’s second point of error, also.

Conclusion

Because the trial court neither commented on the weight of the evidence nor

limited Appellant’s ability to cross-examine a witness, and because Appellant failed

to preserve error, we affirm the trial court’s judgment.

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AFFIRMED.

JAY WRIGHT
Justice

Submitted on February 29, 2024
Opinion Delivered March 6, 2024
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

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