Opinion
No. 11-14-00089-CR
01-28-2016
SAMUEL CAMPOS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court Taylor County, Texas
Trial Court Cause No. 25087A
MEMORANDUM OPINION
The jury found Appellant, Samuel Campos, guilty of aggravated assault. Appellant elected to have the trial court assess punishment. The trial court assessed punishment at imprisonment for twenty years with no fine and then sentenced Appellant. Appellant asserts two issues on appeal. We affirm.
See TEX. PENAL CODE ANN. § 22.02(a)(1) (West 2011).
I. The Charged Offense
The grand jury indicted Appellant for aggravated assault. PENAL § 22.02(a)(1). A person commits an offense of aggravated assault if that person commits an assault, as defined in Section 22.01 of the Texas Penal Code, and that person causes serious bodily injury to another person. Id. Aggravated assault is a second-degree felony. Id. § 22.02(b). A person adjudged guilty of aggravated assault shall be punished by imprisonment for a term of not more than twenty years or less than two years, and a fine may be imposed, not to exceed $10,000. Id. § 12.33.
II. Evidence at Trial
Appellant does not challenge the sufficiency of the evidence, but we provide a recitation of the facts to provide context for the evidentiary arguments that Appellant asserts in his appeal.
A. First Incident
Appellant's niece, S.J., and his cousin, Rena Lynn Arrazola, testified that, one spring evening between 7:30 p.m. and 8:00 p.m., they observed a black car stop in front of Appellant's house in Abilene, Texas. Each witness testified that a man got out of the black car and walked toward Appellant. Appellant was in his front yard, but he faced the house and had his back to the street. Arrazola and S.J. were on the front porch. Arrazola recognized the man as Brian Perez, so she yelled to Appellant, "Sam, it's Brian."
S.J. and Arrazola watched as Perez reached into his pocket, pulled out a gun, and pointed it at Appellant's forehead. Perez cocked the gun and threatened to kill Appellant and his family. Perez then approached S.J. and Arrazola, who were still on the front porch. Appellant told Perez, "I don't have a problem with you" and walked Perez back to his car. Perez then pointed the gun at Arrazola's two-year-old daughter, who also was in the front yard. Perez next turned and pointed the gun at S.J. Arrazola testified that she told S.J., "Don't get up. Don't move. Don't do anything that could trigger him to pull the trigger on us." Arrazola dialed 9-1-1, while Perez got back into his car and left.
B. Second Incident
Alanna Guzman, who was Perez's girlfriend at the time of the incident, testified that, at approximately 10:00 p.m. that night, she, her three children, and Perez drove through an intersection near Appellant's house on their way to Sonic. As they approached the intersection, Guzman noticed a group of about six men, which included Appellant, standing next to the curb drinking beer. Perez stopped at the stop light, placed the car into park, and exited the car. As Perez exited the car, the group of men moved toward him.
Guzman, who was still in the car, looked through the back window of the car and saw one of the men hit Perez in the head. She got out of the car and walked around to the back of the car. There, she found Perez unconscious on the ground as the men punched, stomped, and kicked him. Appellant twice stomped on Perez's head as Perez lay unconscious on the ground. Appellant hit Perez on the head with the butt of a small, silver pistol. After that, the men dispersed and fled the scene. Guzman could not find her cell phone, so she located her iPad in the car and contacted Perez's mother; Perez's mother then called the police. Guzman denied that she had a gun in the car or that Perez had a gun with him when he exited the car. Perez also denied that he had a gun or that Guzman had a gun on the night of the assault.
After the assault, Perez was hospitalized and was in a coma for several weeks.
C. Police Investigation
John Wilson, a detective with the Abilene Police Department, testified that law enforcement could not locate a gun at the scene of the assault. However, according to Detective Wilson, the injuries to Perez's forehead were consistent with him being hit in the head with the butt of a gun. Detective Wilson spoke to Guzman and identified suspects from the group of men that Guzman described. Two of the suspects remarked that there was a small, silver pistol at the scene of the alleged assault. After the assault, one of the suspects picked up the pistol and took it with him as the suspects fled. The suspects that talked to Detective Wilson reported that, after they fled, one of them threw the pistol into a creek at Will Hair Park. Although officers swept the creek in numerous searches with an industrial-sized magnet from Dyess Air Force Base, they never recovered the pistol.
The magnet is used to collect metal objects that are on the flight line and pose a risk to aircraft engines.
D. Evidentiary Rulings During Trial
During trial, defense counsel asked Perez if he had ever been around weapons. Perez responded that he had "been around weapons" but that he had "never had one." Defense counsel asked Perez if he remembered "a Henry McGill incident" and then asked, "And you, in fact, shot the person [McGill] in the leg, right?" The State objected to defense counsel's questions as improper impeachment with an extraneous matter. The trial court asked defense counsel for a response to the State's objection and then gave defense counsel "some latitude" with his questions. Defense counsel asked Perez if the "Henry McGill incident" was "the only time [he] ever used a gun." The State objected and argued that defense counsel's question presented speculation that Perez shot McGill. Defense counsel rephrased the question and asked, "Did you shoot Henry McGill?" Perez responded, "No."
Defense counsel later asked Vivian Soto, the mother of Perez's child, whether Perez had a history with guns. Specifically, he asked if Soto had ever "seen [Perez] with guns" and if Perez was "ever involved in a shooting." Again, the State objected to defense counsel's questions as improper impeachment of a witness. See TEX. R. EVID. 608. The State then requested a hearing outside the jury's presence. During that hearing, the State objected to any reference by defense counsel of Perez's involvement in the shooting of McGill; the trial court found that any questions about the shooting of McGill involved improper impeachment of Perez's previous statement that he had never been involved with guns.
Soto also was a former girlfriend of Appellant.
Defense counsel responded to the State's objection and argued that "the man lived with guns, and that's what I'm going to prove." The trial court ruled that defense counsel could ask any question that addressed Perez's ownership, possession, or use of guns to impeach his previous statement, but did not allow any mention of the "Henry McGill" shooting. Defense counsel argued that he would like the opportunity to question Soto about that incident to prove Perez "has a propensity for dealing with violence." At that point, the trial court found the questions were prohibited by Rule 608, sustained the State's objection, and excluded the testimony.
III. Issues Presented
Appellant, in his first issue, argues that the trial court erred when it excluded evidence under Rule 608 of the Texas Rules of Evidence and prohibited Appellant from impeaching Perez with evidence of Perez's involvement in the shooting of McGill. As part of his first issue, Appellant also argues that the evidence was admissible under TEX. R. EVID. 404. In his second issue, Appellant argues that the trial court erred when it excluded testimony under Rule 701 of the Texas Rules of Evidence that Perez was under the influence of drugs at the time of the assault. We will address Appellant's Rule 404 arguments, followed by his Rule 608 argument, and then his Rule 701 argument.
IV. Standard of Review
We review the trial court's decision whether to admit or exclude witness testimony under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). The test for abuse of discretion is whether the trial court acted without any reference to guiding rules and principles. See Howell v. State, 175 S.W.3d 786, 792 (Tex. Crim. App. 2005). A trial court does not abuse its discretion if evidence supports its decision to either admit or exclude witness testimony. Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002). But if the decision of the trial court is "so clearly wrong as to lie outside that zone within which reasonable persons might disagree," then there is an abuse of discretion. Cantu v. State, 842 S.W.2d 667, 682 (Tex. Crim. App. 1992); see Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
To preserve error regarding the exclusion of evidence by the trial court, a party must have attempted to introduce the evidence during trial, and the trial court must have excluded the evidence. See TEX. R. EVID. 103(a)(2); Basham v. State, 608 S.W.2d 677, 679 (Tex. Crim. App. [Panel Op.] 1980). The proponent of the evidence must have made the substance of the offered evidence known to the trial court through either a bill of exception or an offer of proof, unless the substance of the offered evidence is apparent from the context in which it was offered. See TEX. R. EVID. 103(a)(2); TEX. R. APP. P. 33.1; Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999).
V. Analysis
A. Issue One: Exclusion of Evidence
Appellant asserts, in his first issue, that he should have been allowed to introduce evidence from Soto that Perez had been involved in a fight with another individual that led to the shooting of that individual. Appellant claims that this evidence was admissible because he had an apprehension or fear of Perez. See TEX. R. EVID. 404(b)(2). Appellant argues that specific instances of Perez's prior violent conduct were admissible, under Rules 404 and 405, to establish that Perez was the first aggressor and that Appellant acted in self-defense. See TEX. R. EVID. 404(a)(3), 404(b)(2), 405. Appellant further sought to use the "Henry McGill" incident to prove Perez's "propensity for dealing with violence" and to impeach Perez with extrinsic evidence of Perez's involvement in the shooting of McGill.
In this opinion, we will refer to the current version of the rules, which are substantively indistinguishable, but are numbered differently, from the rules in effect at the time of trial. Compare former TEX. R. EVID. 404(a)(2), with current TEX. R. EVID. 404(a)(3) (as amended effective April 1, 2015).
1. Admissibility of Witness Testimony Under Rule 404
Failure to present a particular argument to the trial court in support of the admission of the excluded evidence results in a waiver of that argument on appeal. See Reyna v. State, 168 S.W.3d 173, 176-79 (Tex. Crim. App. 2005). During the evidentiary hearing, Appellant did not present a specific argument that Soto's testimony was admissible under Rule 404. Appellant has waived that argument. But even if Appellant had preserved his Rule 404 argument, we nonetheless conclude that the trial court did not abuse its discretion when it excluded Soto's testimony regarding the McGill incident.
A party may not introduce evidence of specific past conduct of a witness to prove conformity of character. TEX. R. EVID. 404(b)(1); Robbins v. State, 88 S.W.3d 256, 259 (Tex. Crim. App. 2002) (citing Montgomery, 810 S.W.2d at 386-88); accord Mozon v. State, 991 S.W.2d 841, 846 (Tex. Crim. App. 1999); Tate v. State, 981 S.W.2d 189, 192 (Tex. Crim. App. 1998). When evidence of a person's character is admissible, it may be proved in the form of reputation or opinion testimony. TEX. R. EVID. 405; Tate, 981 S.W.2d at 192. Under Rule 405(b), specific instances of conduct are a permissible method to present character evidence in cases in which "a person's character or character trait is an essential element of a charge, claim, or defense." TEX. R. EVID. 405(b). However, a victim's character trait is generally not an essential element of a claim of self-defense. Tate, 981 S.W.2d at 192-93.
Defense counsel argued at trial that he wanted to offer evidence of the "Henry McGill incident" to prove the victim's "propensity for dealing with violence," but Rule 404 prohibits such a use. Appellant also has asserted, on appeal, that the evidence was admissible under Rule 404(b) for a purpose other than to demonstrate character conformity. See TEX. R. EVID. 404(b)(2). Such evidence must have relevance apart from the tendency to prove that the victim merely acted in accordance with his character. Tate, 981 S.W.2d at 193. Rule 404(b)(2) may allow for the admission of other crimes, wrongs, or acts for another purpose, such as proof of motive, intent, plan, or knowledge. TEX. R. EVID. 404(b)(2).
Appellant mentioned Rule 404(a) in his brief but never attempted to introduce opinion or reputation testimony about Perez's violent character, so this rule is inapplicable. See former TEX. R. EVID. 404(a)(2), now TEX. R. EVID. 404(a)(3); see also TEX. R. EVID. 405.
Appellant argues that evidence of Perez's prior bad act should have been admitted to show Appellant's state of mind and to show the reasonableness of Appellant's claim of apprehension of danger from Perez. TEX. R. EVID. 404(b); Ex parte Miller, 330 S.W.3d 610, 618 (Tex. Crim. App. 2009); see also Torres v. State, 71 S.W.3d 758, 760 & n.4 (Tex. Crim. App. 2002). A defendant may attempt to show his "state of mind" from "communicated character" when he is aware of the victim's violent tendencies or acts and perceives a danger, whether real or not. Ex parte Miller, 330 S.W.3d at 618. This defense does not implicate Rule 404(a)(3) because Rule 404(a)(1) only bars such evidence to prove the victim's conformity of conduct. Id. This defense is unavailable if the defendant was not aware of prior acts of violence by the victim. Id. We have not found any evidence in the record that Appellant had knowledge of the "Henry McGill incident" prior to the assault of Perez. This rule is inapplicable in Appellant's case because he was not aware of the incident described by Soto. See Ex parte Miller, 330 S.W.3d at 618; Torres, 71 S.W.3d at 760 & n.4.
The court in Ex parte Miller refers to former Rule 404(a)(2), now Rule 404(a)(3). 330 S.W.3d at 618-19. --------
A defendant that has claimed self-defense may also offer evidence of a prior violent act committed by the victim in order to show that the victim was the first aggressor, and the defendant need not be aware of the act. TEX. R. EVID. 404(b)(2); Torres v. State, 117 S.W.3d 891, 894-95 (Tex. Crim. App. 2003); Tate, 981 S.W.2d at 193. To support a claim that the victim was the first aggressor, the accused must first offer evidence of an actual act of aggression by the victim at the time of the offense. Dudzik v. State, 276 S.W.3d 554, 560 (Tex. App—Waco 2008, pet. ref'd). And the victim's prior violent conduct is only admissible (1) if there is some ambiguous or uncertain evidence of a violent or aggressive act by the victim that tends to show the victim was the first aggressor and (2) if the proffered evidence tends to dispel the ambiguity or explain the victim's conduct at the time of the incident. James v. State, 335 S.W.3d 719, 728 (Tex. App.—Fort Worth 2011, no pet.) (citing Mai v. State, 189 S.W.3d 316, 321 (Tex. App.—Fort Worth 2006, pet. ref'd); Reyna v. State, 99 S.W.3d 344, 347 (Tex. App.—Fort Worth 2003, pet. ref'd)). But where the acts of the victim in the incident in question are unambiguous and need no explanation, then instances of prior violent conduct are not admissible. See London v. State, 325 S.W.3d 197, 206 (Tex. App.—Dallas 2008, pet. ref'd).
S.J. and Arrazola testified that Perez had a gun in the first incident and that he had threatened Appellant, Appellant's family, and them. Appellant testified that Perez threatened him with a gun in the first incident and that, in the second incident, Perez exited his car with a gun, cocked it, pointed it at the group, and asked which one of them wanted to die tonight. In contrast, Guzman testified that she did not have a gun and that Perez did not have a gun; Perez also denied that he had a gun when he was assaulted. Guzman also testified that the men, which included Appellant, moved toward Perez and struck Perez first.
Appellant argues that the evidence about Perez's actions is ambiguous and that Soto's testimony about the "Henry McGill incident" would resolve that ambiguity. The conflicting facts described in this case bear no resemblance to the facts alleged in the "Henry McGill incident." In the prior incident, Perez and McGill were fighting over a pistol when McGill got shot. Soto did not indicate that Perez was the aggressor in that incident. The excluded evidence of the "Henry McGill incident" would not have dispelled any alleged ambiguity about whether Perez had a gun when he exited his car and what action he took as the men from the street corner moved toward him. The evidence about what Perez did in the second incident was not ambiguous, only conflicting. In addition, once Appellant and others struck Perez and Perez fell to the ground unconscious, Perez was not a threat. Nonetheless, Appellant continued to kick and stomp Perez and hit Perez in the head with the butt of a pistol.
2. Admissibility of Witness Testimony Under Rule 608
Appellant also claims the evidence of the "Henry McGill incident" was admissible under Rule 608. Rule 608(a) provides that, if a witness's character for truthfulness is attacked or questioned, then a party may introduce reputation or opinion testimony concerning the witness's truthfulness. TEX. R. EVID. 608(a). Rule 608(b) provides, with limited exceptions under Rule 609 for criminal convictions, that a party may not offer extrinsic evidence to prove specific instances of the witness's conduct in order to attack or support the witness's character for truthfulness. TEX. R. EVID. 608(b); see Martinez v. State, 17 S.W.3d 677, 688 (Tex. Crim. App. 2000).
Defense counsel initially told the trial court that he was "going to ask if [Soto] observed [Perez] and Mr. McGill fighting over a gun." He argued that the testimony was admissible because "Perez [had] testified that he never had anything to do with guns, more than once." According to Rule 608, a witness's character for truthfulness may not be impeached with extrinsic evidence of specific conduct unless the witness was convicted for the offense that is the basis for the extrinsic evidence. See TEX. R. EVID. 608(b), 609; see Hammer v. State, 296 S.W.3d 555, 563-64 (Tex. Crim. App. 2009) (Rule 608(b) analysis); Theus v. State, 845 S.W.2d 874, 879-81 (Tex. Crim. App. 1992) (Rule 609 analysis).
The incident involving Perez and McGill is a specific instance of conduct that did not involve a conviction; both defense counsel and the State indicated that any charges against Perez for his involvement in the "Henry McGill" shooting had been dismissed. See Martinez, 17 S.W.3d at 688. Furthermore, the trial court did not limit defense counsel's ability to impeach Perez because it allowed defense counsel to ask Perez questions about his ownership, possession, and use of guns. We conclude that the trial court did not abuse its discretion when it excluded Soto's testimony about the "Henry McGill incident" as improper impeachment with extrinsic evidence under Rule 608. We overrule Appellant's first issue.
B. Issue Two: Exclusion of Evidence on Whether Victim Was Under
the Influence of Drugs at the Time of the Aggravated Assault
Appellant argues that the trial court erred when it excluded Appellant's testimony, under Rule 701, that Perez was under the influence of drugs at the time of the alleged aggravated assault. See TEX. R. EVID. 701. During trial, defense counsel questioned Appellant about Perez's mental state and asked, "Did he walk fluidly? . . . [D]id he act like he was on something?" The State objected to defense counsel's questions and referred to them as pure speculation because Appellant did not know whether Perez was under the influence of drugs.
Defense counsel then rephrased his questions to Appellant and asked if Appellant had ever been around people who were under the influence of drugs and if he knew how people acted when they were under the influence of drugs. Defense counsel then asked Appellant, "Do you have an opinion whether or not [Perez] was on anything?" The State objected a second time and argued that there was no evidence to establish that Appellant was familiar with Perez's normal state of mind and that Appellant could not have formed an opinion as to whether Perez was under the influence of drugs. Defense counsel responded to the objection and restated that Appellant was familiar with individuals who were under the influence of drugs and could offer his opinion as to whether Perez behaved like someone under the influence of drugs. The trial court sustained the State's objection.
Whether a lay opinion is admissible under Rule 701 is within the sound discretion of the trial court. Fairow v. State, 943 S.W.2d 895, 901 (Tex. Crim. App. 1997). We will not overturn the decision of the trial court unless the trial court abused its discretion. Id. Furthermore, if the evidence in the record supports the trial court's decision to admit or exclude an opinion under Rule 701, we must defer to that decision, and there is no abuse of discretion. Id. (citing Carroll v. State, 916 S.W.2d 494, 503 (Tex. Crim. App. 1996)).
The trial court must decide under Rule 701 whether the lay witness testimony is (1) rationally based on the witness's perception and (2) helpful to clearly understanding the witness's testimony or determining a fact at issue. TEX. R. EVID. 701. The first prong of an analysis under Rule 701 consists of two parts: (1) the witness must establish personal knowledge of the events from which his opinion is drawn and (2) the opinion must be rationally based on that knowledge. Fairow, 943 S.W.2d at 898-900. The second prong of admissibility is that the opinion must be helpful to the trier of fact to either understand the witness's testimony or determine a fact in issue. TEX. R. EVID. 701; Fairow, 943 S.W.2d at 900.
We need not address the first prong of the test under Rule 701 because the evidence that Appellant sought to introduce fails the second prong of "helpfulness" to the jury. As we have explained, evidence of prior bad acts, wrongs, or crimes is inadmissible to prove character conformity in the incident in question. TEX. R. EVID. 404(b). In addition, the evidence Appellant sought to introduce was not helpful because it was irrelevant. Evidence is relevant if (a) it has any tendency to make a fact more or less probable than it would be without the evidence and (b) the fact is of consequence in determining the action. TEX. R. EVID. 401. Evidence which is not relevant is inadmissible. TEX. R. EVID. 402; Williams v. State, No. 11-11-00318-CR, 2013 WL 5676226, at *2 (Tex. App.—Eastland Oct. 17, 2013, pet. ref'd) (mem. op., not designated for publication); Coleman v. State, 935 S.W.2d 467, 469 (Tex. App.—Tyler 1996, pet. ref'd). The victim's alleged use of drugs prior to the assault is irrelevant to Appellant's commission of the offense of aggravated assault, as is Appellant's opinion that the victim was under the influence of drugs.
Appellant did not offer evidence that the victim was a first aggressor because the victim was under the influence of drugs. See TEX. R. EVID. 404; Torres, 71 S.W.3d at 762. In addition, uncharged misconduct may be admissible to rebut a defensive issue that negates an element of the offense. Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005); Montgomery, 810 S.W.2d at 387 (op. on reh'g). However, Appellant did not assert that the victim's condition negated an element of the offense. Appellant simply attempted to use improper character evidence of the victim. See TEX. R. EVID. 404(b); Tate, 981 S.W.2d at 192. We cannot say that the trial court abused its discretion when it excluded Appellant's testimony. We overrule Appellant's second issue.
VI. This Court's Ruling
We affirm the judgment of the trial court.
MIKE WILLSON
JUSTICE January 28, 2016 Do no publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.