No. 4-05-00196-CR
Delivered and Filed: May 3, 2006. DO NOT PUBLISH.
Appeal from the 144th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CR-2488, Honorable Mark Luitjen, Judge Presiding. Affirmed.
Sitting: Catherine STONE, Justice, Karen ANGELINI, Justice, Rebecca SIMMONS, Justice.
Opinion by: CATHERINE STONE, Justice.
Dennis Benitez appeals his conviction for the murder of Robert Torres-Reid. We affirm the trial court's judgment.
Background
Robert Torres-Reid, a Deputy Sheriff from Marion County, Indiana, met Omar Romero, a signals analyst for the United States Army, on January 2, 2004, when the men were seated next to each other on a Northwest Airlines flight to San Antonio, Texas. The men exchanged telephone numbers upon their arrival to San Antonio, and made plans to meet later that night to celebrate Romero's deployment to Korea. Torres-Reid called Romero after the men got home and made arrangements to go out for drinks. Torres-Reid and his companion, Dennis Benitez, a former police officer for the City of Miami, arrived at Romero's apartment around 11:40 p.m. or 11:50 p.m. The three men left Romero's apartment and drove to downtown San Antonio to go to a club called Fat Tuesdays. After having several drinks at Fat Tuesdays, the men went to another club called Howl at the Moon. The men spent more than an hour and a half at Howl at the Moon, consuming "about four shots and a good amount of mixed drinks." While the men were at Howl at the Moon, Torres-Reid and Benitez started joking around with each other and giving each other a hard time. The joking, however, turned personal when the men began to talk about sexually pleasing each other's ex-wife. After the three men left Howl at the Moon at around 2:00 a.m., the men got into Benitez's vehicle and began to drive home. Benitez drove the vehicle, while Torres-Reid sat in the front passenger's seat and Romero in the back seat. Romero fell asleep sometime after entering the vehicle because he "was buzzed real bad." Romero, however, awoke from his sleep a short time later when he heard scuffling noises coming from the front compartment of the vehicle. When Romero awoke, he witnessed Benitez grab an object that looked like a tire iron and saw him attack Torres-Reid with the object. Benitez pulled his vehicle over once he had finished attacking Torres-Reid, who was slouching forward, covered with blood, and struggling to breathe after the attack. Upon seeing Torres-Reid's condition, Benitez told Romero to call 911 for medical assistance and instructed Romero to tell the operator that the three men had just been in a car accident. Emergency personnel, however, had difficulty locating the accident scene. By the time emergency personnel reached the scene, nearly one hour had elapsed since Romero first placed his call for medical assistance. Torres-Reid had lost an extraordinary amount of blood by this point and was nonresponsive. Medical personnel immediately transported Torres-Reid to the hospital, but they could not save Torres-Reid's life. Benitez was subsequently arrested and charged with murder after Romero told authorities that he had witnessed Benitez bludgeon Torres-Reid with a tire iron. After a jury trial, Benitez was found guilty of the alleged offense and sentenced to 35 years imprisonment and fined $10,000. Benitez appeals his conviction, complaining in five issues that the trial court erred by: (1) admitting inadmissible hearsay and extraneous offense evidence during the guilt/innocence phase of his trial; (2) allowing the prosecutor to engage in improper jury argument during her closing argument; (3) failing to include an instruction regarding sudden passion in the jury charge; and (4) denying him his right to confrontation during the punishment phase of his trial. Evidentiary Rulings
A. Erroneous admission of hearsay In his first issue, Benitez complains the trial court erred in allowing San Antonio Police Officer Mark Salazar to testify during the guilt/innocence phase concerning the out-of-court statements Omar Romero made to him upon his arrival at the crime scene. Specifically, Benitez's complaint concerns Officer Salazar's testimony relating to Romero's statements that Romero was "very afraid of [Benitez]" and that Salazar "need[ed] to protect [Romero] from [Benitez]." Benitez argues the admission of this hearsay testimony was error that affected his substantial rights. Even if we were to assume the trial court erred when it allowed Officer Salazar to testify concerning the out-of-court statements made by Romero, the record fails to demonstrate that this error requires reversal. The admission of inadmissible hearsay constitutes nonconstitutional error. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). Rule 44.2(b) of the Texas Rules of Appellate Procedure provides that nonconstitutional error "that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). A substantial right is not affected by the erroneous admission of evidence "`if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect.'" Motilla v. State, 78 S.W.3d 352, 355 (Tex.Crim.App. 2002) (citations omitted). We are convinced that the error in this case, if any, did not have a substantial and injurious effect or influence on the jury's verdict. The record reveals that the jury heard Romero testify in person at trial, without objection, to the same matter as testified to by Officer Salazar. It is well settled that the improper admission of evidence is not reversible error when "other evidence is admitted at trial without objection and it proves the same fact that the inadmissible evidence sought to prove." Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App. 1986). Because Romero's testimony was admitted without objection and proved the same fact that Officer Salazar's testimony sought to prove, we must hold that the trial court's error was harmless. See id. Benitez's first issue is overruled. B. Erroneous admission of extraneous offenses
In his fourth issue, Benitez argues the trial court erred by improperly admitting evidence of extraneous offenses during the guilt/innocence phase of the trial. Benitez's complaint specifically concerns testimony from San Antonio Police Officer Barry Smith and Miami Police Officer Alejandro Oliva that Benitez: (1) "did not conduct himself properly while [he was enrolled as a cadet] at the police academy"; and (2) "h[eld] himself out as a City of Miami Police Officer" on the night of Torres-Reid's murder. Benitez argues the admission of this extraneous offense evidence was error that affected his substantial rights. As to Benitez's first assertion that the trial court erred in admitting evidence that he "did not conduct himself properly while [he was enrolled as a cadet] at the police academy," the record indicates that neither Officer Smith nor Officer Oliva testified about Benitez's conduct at the police academy. Because neither of the officers presented any evidence regarding Benitez's prior bad acts at the police academy, we must conclude Benitez's first assertion lacks merit. With respect to Benitez's second assertion that the trial court erred by admitting testimony that Benitez "h[eld] himself out as a City of Miami Police Officer" on the night of the murder, we are likewise unpersuaded by Benitez's argument. As previously noted, "[i]nadmissible evidence can be rendered harmless if other evidence at trial is admitted without objection and it proves the same fact that the inadmissible evidence sought to prove." Id. The record indicates that Romero also testified, without objection, that Benitez had held himself out as a police officer on the night of the murder. Thus, even if we were to assume the officers' testimony on this matter was inadmissible, any error in admitting such testimony was rendered harmless because the same testimony was given by another witness without objection. See id. Benitez's fourth issue is overruled. Improper Jury Argument
In his third issue, Benitez argues his conviction should be reversed because the prosecutor engaged in improper jury argument during her closing argument. To preserve any error from improper jury argument, a party must object to the argument and pursue the objection until the trial court rules adversely. Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim.App. 1996). If the objection to the argument is sustained, the defendant must request an instruction for the jury to disregard, and then move for a mistrial. See Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993). Here, during closing argument in the guilt/innocence phase of the trial, the prosecutor stated: "Thank God the Miami Police Department got rid of this man." Defense counsel objected that the prosecutor had engaged in "improper argument." The trial court sustained the objection and defense counsel immediately requested an instruction to disregard. Per defense counsel's request, the trial court instructed the jury to disregard the prosecutor's last statement. Defense counsel, however, took no further action regarding the prosecutor's statement. Benitez's failure to follow up on his objection by requesting a mistrial waived any error concerning the prosecutor's alleged improper argument. See id. Benitez's third issue is overruled. Charge Error
In his fifth issue, Benitez contends the trial court erred by failing to include an instruction regarding sudden passion in the jury charge because the issue of sudden passion was raised by the evidence. During the punishment phase of trial, a defendant may argue that he caused the death of the victim while under the immediate influence of sudden passion arising from an adequate cause. McKinney v. State, 179 S.W.3d 565, 569 (Tex.Crim.App. 2005). "Sudden passion" is defined as "passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation." Tex. Penal Code Ann. § 19.02(a)(2) (Vernon 2003). "Adequate cause" is a "cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection." Id. § 19.02(a)(1). "Thus, before a defendant is allowed a jury instruction on sudden passion, he must prove that there was an adequate provocation, that a passion or an emotion such as fear, terror, anger, rage, or resentment existed, that the homicide occurred while the passion still existed and before there was reasonable opportunity for the passion to cool; and that there was a causal connection between the provocation, the passion, and the homicide." McKinney, 179 S.W.3d at 569. A defendant is entitled to a sudden passion charge if it is raised by the evidence, even if that evidence is weak, impeached, contradicted, or unbelievable. Id. The evidence, however, cannot be so weak, contested, or incredible that it could not support such a finding by a rational jury. Id. As support for his contention, Benitez points to Romero's testimony that he and Torres-Reid had exchanged insults, while at Howl at the Moon, about sexually pleasing each other's wife. According to Romero's testimony, the interaction between Benitez and Torres-Reid became serious when the men got personal with their comments. Romero stated that Benitez and Torres-Reid continued to insult each other even as they left the club at the end of the night. Romero testified that after the three men left the club, he fell asleep when he got into Benitez's car because he "was buzzed real bad." Romero stated that he awoke from his sleep a short time later when he heard scuffling noises coming from the front compartment of the vehicle. Romero testified he immediately blurted the words "[h]ey, hey" to Benitez and Torres-Reid. According to Romero, Benitez told Romero, "Don't worry about it. Be quiet." Benitez then reached down underneath his seat and grabbed an object that looked like a tire iron. Romero stated Benitez took the object and started to beat Torres-Reid with it. Romero testified Benitez's demeanor changed from angry to panicked after he attacked Torres-Reid. Romero's testimony does not show that Benitez acted under the requisite immediate influence of sudden passion. The record indicates that Torres-Reid's remarks about Benitez's ex-wife occurred well before the time of the offense, when the men were drinking at Howl at the Moon. The remarks were thus not a provocation which arose at the time of the offense, but a former provocation, if a provocation at all. See Rayme v. State, 178 S.W.3d 21, 28 (Tex.App.-Houston [1st Dist.] 2005, pet. ref'd) (holding provocation occurring hours before murder constituted a former provocation). Because passion that is solely the result of former provocation does not qualify as "sudden passion," see Hobson v. State, 644 S.W.2d 473, 478 (Tex.Crim.App. 1983), we hold the trial court did not err by omitting from the charge an instruction on sudden passion. Benitez's fifth issue is overruled. Right to Confrontation
In his second issue, Benitez argues he was denied his right to confrontation during the punishment phase of his trial. Benitez's complaint stems from testimony given by Miami Police Officer Rene Revilla, Jr. during the punishment phase concerning the content of a memo drafted by Benitez's classmates when Benitez was enrolled at the police academy. The memo revealed Benitez's classmates thought Benitez "was out of control and he was disrupting the whole class in its entirety." The memo further indicated Benitez's classmates wanted Officer Revilla to "take action" and "do something" about Benitez's inappropriate behavior. Benitez argues the admission of his classmates' out-of-court statements violated his right to confront his accusers because his classmates were not present at trial. Benitez, however, failed to object on the basis that the testimony in question violated his constitutional right to confrontation. Benitez's failure to specifically object on confrontation grounds thus waived his complaint. Benitez's second issue is overruled. Conclusion
Based on the foregoing, the judgment of the trial court is affirmed.