Opinion
No. 05-10-01468-CR
03-30-2012
ALFONSO LOZANO MONTOYA, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed March 30, 2012
On Appeal from the Criminal District Court No. 1
Dallas County, Texas
Trial Court Cause No. F-1052191-H
MEMORANDUM OPINION
Before Justices O'Neill, Richter, and Francis
Opinion By Justice O'Neill
A jury convicted appellant Alfonso Lozano Montoya of stalking under section 42.072 of the penal code. The court assessed punishment at five years' imprisonment. On appeal, he argues the trial court (1) erred by refusing to allow him to question potential jurors about their bias or prejudice against illegal immigrants and (2) erred by allowing in evidence of unauthenticated text messages. We affirm the trial court's judgment.
Background
Maria Benavides lived with appellant, her significant other at the time, for two years. Their relationship ended in June 2009. Despite ending the relationship, appellant continued to bother Benavides. He followed her, said "cussing words" to her, and sent threatening text messages to her. She sought a protective order in November 2009, but he continued to bother her. She testified his behavior scared her, and he was sometimes aggressive. He also threatened to kill her on "some occasions."
On December 2, 2009, appellant followed Benavides to her son's school and threatened her. He told her "he knew that I was throwing the police at him . . . he threatened me with burning my car if I kept doing things like that." Benavides eventually quit her job, moved, and changed her children's school to avoid appellant.
On January 21, 2010, Benavides again saw appellant at her children's school. He was within a short distance from her in his car holding "some big rocks" in his hands and smiling at her. She took it as a threat.
Benavides testified that after their relationship ended, she asked appellant to leave her alone at least thirty times. Appellant was charged and convicted of stalking under section 42.072 of the penal code. See Texas Penal Code Ann. § 42.072 (West 2011). This appeal followed.
Immigration Status During Voir Dire
In his first issue, appellant argues the trial court denied him his right to an impartial jury by refusing to allow his counsel to question the potential jurors about any biases or prejudices they may have against illegal immigrants. The State argues appellant waived the issue by failing to object. Alternatively, even if the issue is preserved for review, the State contends the trial court correctly ruled against such questions because appellant's immigration status is irrelevant.
We agree appellant has failed to preserve his argument for review. To preserve an issue for review, there must be a timely objection that specifically states the legal basis for that objection. See Tex. R. App. P. 33.1. Appellant never objected that the trial court was denying him his right to an impartial jury. In fact, after the trial court sustained the State's objection to appellant's attempts to question the jury about whether his ability to speak English and his immigration status mattered to anyone, appellant continued to ask similar questions until the State raised its objection again.
Even after the court specifically stated a person's immigration status has no bearing on whether the State proves guilt beyond a reasonable doubt and for appellant to "move on," appellant did not object that the court was denying him his right to an impartial jury. In fact, appellant at one point asked the trial court if he could "ask if any jury person would put any burden on the Defense that isn't required by law" and the court said, "Just generally, that's fine."
Outside the presence of the voir dire panel and "for purposes of the record," counsel argued the purpose of his questions was to determine whether any potential juror would hold the defense to a burden not required by law because someone would have to know his immigration status. The court again stated it sustained the State's objection because counsel could not ask the jurors to speculate about appellant's immigration status because it was irrelevant. At no time during this discussion did counsel argue that appellant was being denied his right to an impartial jury.
When the trial court later asked, "Does either side have an objection to the jury that's seated?", appellant stated, "No objection from the defense." Cf. Williams v. State, 313 S.W.3d 393, 401 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd) (holding any error in the seating of the jury was waived when appellant did not object at any point to the composition of the jury as impaneled). Based on the record, we conclude appellant failed to preserve his issue for review. See Tex. R. App. P. 33.1.
Even if we construed counsel's argument to the trial court outside the presence of the jury as an objection to denying appellant's right to an impartial jury, appellant's argument is without merit. The trial court has broad discretion over the process of selecting the jury. Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003). A trial court abuses its discretion when it prohibits a proper question about a proper area of inquiry. Id. A question is proper if it seeks to discover a juror's views on an issue applicable to the case. Id. at 756.
As the trial court properly stated, appellant's immigration status has no relevance as to whether the State proves his guilt beyond a reasonable doubt for the offense of stalking. Further, appellant made no showing of how such information could be relevant to the offense. See, e.g., McGraw v. State, C14-85-054-CR, 1986 WL 10457, at *1 (Tex. App.-Houston [14th Dist.] Sept. 18, 1986, no pet.) (not designated for publication) (holding trial court did not abuse its discretion by limiting cross-examination of the complainant concerning alien status because despite defendant's arguments to the contrary, he failed to show how it was relevant to the complainant's credibility, motive, prejudice, or bias). Accordingly, the trial court did not abuse its discretion and deny appellant's right to an impartial jury. Appellant's first issue is overruled.
Admission of Text Messages
In his second issue, appellant argues the trial court abused its discretion by admitting unauthenticated text messages from Benavides's phone. The State responds the trial court did not abuse its discretion because the one text message read into evidence was authenticated, or alternatively, any error was harmless.
The trial court's ruling on the admissibility of evidence is reviewed under an abuse of discretion standard. Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App. 2010). The trial court abuses its discretion only when the decision lies "outside the zone of reasonable disagreement." Id.
The requirement of authentication or identification is a condition precedent to the admissibility of evidence and is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Tex. R. Evid. 901(a). Authentication can be accomplished in various ways, including by direct testimony from a witness or circumstantial evidence. See Manuel v. State, 357 S.W.3d 66, 74-75 (Tex. App.-Tyler 2011, pet. ref'd). For example, rule 901(b)(1) allows authentication through a witness who provides testimony "that a matter is what it is claimed to be." Tex. R. Evid. 901(b)(1).
Rule 901 "does not erect a particularly high hurdle, and that hurdle may be cleared by circumstantial evidence." Manual, 357 S.W.3d at 74 (quoting Peter T. Hoffman, Texas Rules of Evidence Handbook, Article IX at p. 948 (8th ed. 2008-2009)). The proponent of the evidence does not need "to rule out all possibilities inconsistent with authenticity, or to prove beyond any doubt that the evidence is what it purports to be." Id. The proponent must only produce sufficient evidence that a reasonable fact finder could properly find genuineness. Id.
Benavides's son, Dino, testified about the text messages his mother received from appellant.
The following text message was read into the record:
You ended up like a super ass hole. I wanted to know what you are doing - I wanted to know what you're going to testify in court about all of the-all of the-your charges, Maria. You are being an ass hole. You just yourself, you're going to get into-you're going to get into with your ignorance to learn how to talk and lie and stop-stop screwing around. Nothing that you do ends up well and soon enough, you're going to hear me, you whore. Let's see if you can sleep peacefully.Appellant argues the State failed to authenticate this text message because Dino did not see the text message arrive from appellant's phone, nor could Dino testify the texts were sent by appellant's recognizable telephone number.
While we agree the record does not contain this specific information, Dino did testify he knew when his mother received text messages from appellant. Because he was better with technology, he saved the texts on the phone. He also testified the texts were threatening. Dino then pulled out Benavides's phone and pulled up the above text message for the attorneys to review. Given the low threshold for authentication under Rule 901(b)(1), we conclude Dino's testimony was sufficient that a reasonable fact finder could properly determine that the text message was what it claimed to be-a text message from appellant. Accordingly, the trial court did not abuse its discretion in admitting the evidence.
Even if the trial court erred in admitting the evidence, the error was harmless. Because error in the admission of evidence is non-constitutional, appellant must show the error affected his substantial rights. Tex. R. App. P. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005).
Appellant argues the jury was exposed to fifty-two text messages, but his representation of the record is incorrect. While Dino testified appellant sent over fifty text messages in the span of eleven days, only the content of one text message was relayed to the jury. Appellant did not object to Dino's testimony that appellant sent the other text messages.
The phone itself was admitted into evidence without any objection from appellant.
Moreover, the one message read to the jury likely had little effect on the verdict. Given the testimony from Benavides regarding appellant's behavior after she ended their relationship, the court's admission of a single text message would not have had a substantial effect on the outcome of the case. Therefore, any error would have been harmless. Appellant's second issue is overruled.
Conclusion
Having overruled appellant's issues, the judgment of the trial court is affirmed.
MICHAEL J. O'NEILL
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101468F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ALFONSO LOZANO MONTOYA, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-01468-CR
Appeal from the Criminal District Court No. 1 of Dallas County, Texas. (Tr.Ct.No. F- 1052191-H).
Opinion delivered by Justice O'Neill, Justices Richter and Francis, participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 30, 2012.
MICHAEL J. O'NEILL
JUSTICE