Opinion
NO. 01-16-00592-CR
07-06-2017
ANTONIO ANGUIANO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 185th District Court Harris County, Texas
Trial Court Case No. 1402374
MEMORANDUM OPINION
A jury found appellant, Antonio Anguiano, guilty of the offense of capital murder. Because the State did not seek the death penalty, the trial court, as statutorily required, assessed his punishment at confinement for life without parole. The trial court further found that appellant used a deadly weapon, namely, a firearm, in the commission of the offense. In his sole issue, appellant contends that the trial court erred in admitting certain evidence.
See TEX. PENAL CODE ANN. § 19.03(a)(7) (Vernon Supp. 2016).
See id. § 12.31(a)(2) (Vernon Supp. 2016).
We affirm.
Background
Richard Bradford testified that in 2013, he owned a building located at 16418 Market Street, Channelview, Texas (the "property"). He lived at the property, sold narcotics there, and used it "as an entertainment place where people [c]ould come over" to "party." Bradford noted that he kept a "stash or stockpile" of money, firearms, and narcotics at the property.
In regard to his narcotics-dealing, Bradford sold pain pills, or prescription pills, and individuals would come to the property to purchase the pills from him. When he was not at the property, one of the complainants, Daniel Rebeiz, was responsible for selling narcotics to customers. The other complainant, John Daniel Shepherd, was a friend of Bradford and would "hang out" at the property frequently. Bradford noted that "anywhere from 25 to 40 different people" would come to the property daily to purchase narcotics from him.
Bradford explained that he first met appellant in July 2013, when he came to the property with a man named "Tim," who had wanted to sell Bradford a firearm. At that time, appellant showed Bradford his firearm, a 9-millimeter handgun that he had recently purchased from Tim. Thereafter, appellant and his friend, "Wally," started coming to the property regularly. Bradford's customers then began to complain about appellant and Wally because they carried firearms and made the customers nervous.
Bradford further testified that at around 7:00 or 7:30 p.m. on August 22, 2013, he told both appellant and Wally that they were no longer allowed at the property and needed to leave. When this occurred, Bradford, Bradford's friend, Larry Reed, and the two complainants were all at the property. Subsequently, at about 8:00 p.m., Bradford and Reed left the property to go to a store, while the complainants remained. While at the store, Bradford received a telephone call from David Polasek, a narcotics customer, and Bradford and Reed immediately returned to the property.
Once Bradford arrived at the property and went inside, he saw the complainants "on the ground." It appeared to him that someone "had been looking around" the property because the bedrooms doors were open and things were "out of place" and "knocked over." After he removed his narcotics, firearms, and money from the property, Bradford called for emergency assistance. He noted that he later met with appellant, who told him that he had been at the property when the complainants were shot and Wally was the one who shot them.
Kimberly Rogers testified that in 2013, she had seen appellant and Wally carrying firearms at the property while she was there to buy narcotics. She believed that appellant's firearm was a 9-millimeter handgun. Rogers was at the property around 9:00 p.m. on August 22, 2013, when she saw the complainants in the back room selling narcotics and appellant sitting outside the door to the property. When she left the property, the only people who remained were the complainants and appellant.
Samantha Dix testified that on August 22, 2013, at "a little" after 9:00 p.m., she went to buy narcotics at the property and saw appellant sitting outside the door. When she entered the property, she saw the two complainants and Wally. Dix stayed at the property for about five minutes, and when she left, Wally, appellant, and the complainants remained.
Polasek testified that in 2013, he would regularly go to the property to buy narcotics and he knew the complainants. On August 22, 2013, at about 9:30 or 9:40 p.m., he went to the property with his wife. As he opened the door, he saw the complainants "on the floor" and realized that they had been shot. Polasek then called Bradford.
Harris County Sheriff's Office ("HCSO") Sergeant M. Ferguson testified that sometime after 9:00 p.m. on August 22, 2013, someone shot the complainants in the head. During the course of his investigation, Ferguson learned that both appellant and Wally had been at the property on the day of the shooting and two firearms, a 9-millimeter handgun and a .32 caliber handgun, were used during the shooting. Ferguson further noted that he interviewed appellant's former girlfriend, Anjalea McClurg, about a month after the shooting, and he made an audio recording of the interview.
Dr. Morna Gonsoulin, an assistant medical examiner at the Harris County Institute of Forensic Sciences, testified that she performed autopsies on the complainants, who died on August 22, 2013. Each complainant sustained two gunshot wounds to the head and one gunshot wound to the right forearm. Gonsoulin opined that the cause of the complainants' deaths were gunshot wounds to the head and right arm, and she ruled their deaths homicides.
Standard of Review
We review a trial court's ruling on the admission of evidence for an abuse of discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism'd). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990). When considering a trial court's decision to admit evidence, we will not reverse the trial court's ruling unless it falls outside the "zone of reasonable disagreement." Green v. State, 934 S.W.2d 92, 102 (Tex. Crim. App. 1996) (internal quotations omitted). We will uphold a trial court's evidentiary ruling if it is correct on any theory of law applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Admission of Evidence
In his sole issue, appellant argues that the trial court erred in admitting into evidence State's Exhibit 191, an audio-recorded statement that appellant's former girlfriend, McClurg, gave to Sergeant Ferguson, because it constitutes hearsay and was not admissible under the recorded-recollection exception to the hearsay rule. See TEX. R. EVID. 801(d), 802, 803(5).
We may not determine whether a trial court erred in the admission of evidence unless error is preserved for our review. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003). To preserve the issue of erroneously admitted evidence, a party must make a timely and specific objection and obtain a ruling from the trial court. TEX. R. APP. P. 33.1(a); Martinez, 98 S.W.3d at 193. "The purpose of requiring a specific objection in the trial court is twofold: (1) to inform the trial [court] of the basis of the objection and give [it] the opportunity to rule on it[] [and] (2) to give opposing counsel the opportunity to respond to the complaint." Resendez v. State, 306 S.W.3d 308, 312 (Tex. Crim. App. 2009). A party "must be specific enough so as to 'let the trial [court] know what he wants, why he thinks himself entitled to it, and do so clearly enough for the [trial court] to understand him at a time when the trial court is in a proper position to do something about it.'" Id. at 313 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)). A party also fails to preserve error when the contention urged on appeal does not comport with the specific complaint made in the trial court. See Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009); Rothstein v. State, 267 S.W.3d 366, 373 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd).
We must consider the context of the complaint to determine if the party preserved error. Resendez, 306 S.W.3d at 313. If the correct ground for exclusion was obvious to the trial court and opposing counsel, waiver will not result from a general or imprecise objection. Zillender v. State, 557 S.W.2d 515, 517 (Tex. Crim. App. 1977). However, if the context shows that a party failed to effectively communicate his argument, then the error is deemed waived on appeal. Lankston, 827 S.W.2d at 909.
At trial, during the testimony of McClurg, appellant's former girlfriend, the trial court admitted into evidence State's Exhibit 191, an audio-recorded statement that she gave to Sergeant Ferguson. Appellant generally objected to the admission into evidence of State's Exhibit 191, asserting that "the entire" audio-recorded statement should not be "play[ed]." However, appellant, in his brief, asserts that McClurg's statement constitutes hearsay and does not meet the requirements of the recorded-recollection exception to the hearsay rule. See TEX. R. EVID. 801(d), 802, 803(5). Appellant did not raise his hearsay objection to State's Exhibit 191 in the trial court, nor did he assert that the State improperly sought to admit the exhibit under the recorded-recollection exception to the hearsay rule. Accordingly, we hold that appellant did not preserve his issue about State's Exhibit 191 for our review. TEX. R. APP. P. 33.1(a); Lovill, 319 S.W.3d at 691-92 (error not preserved where contention urged on appeal does not comport with complaint made in trial court); Rothstein, 267 S.W.3d at 373 ("An objection stating one legal theory may not be used to support a different legal theory on appeal.").
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice Panel consists of Justices Jennings, Keyes, and Lloyd. Do not publish. TEX. R. APP. P. 47.2(b).