Opinion
No. 05-02-01608-CR.
Opinion issued January 13, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F01-60124-Sw. Affirmed.
Before Chief Justice THOMAS and Justices JAMES and FITZGERALD. Opinion By Justice JAMES.
OPINION ON MOTION FOR REHEARING
Appellant's motion for rehearing is denied. The Court's opinion of November 3, 2003 is withdrawn. The following is now the opinion of this Court. Jose Ramirez appeals his conviction for murder. After finding appellant guilty, the jury assessed appellant's punishment at life imprisonment. Appellant brings twelve points of error contending the evidence is factually insufficient to support his conviction and the trial court erred by denying his motions for mistrial. We affirm the trial court's judgment.
FACTUAL BACKGROUND
Christina Hernandez testified she was appellant's girlfriend and lived with him in January 2000. On January 14, 2000, Hernandez and appellant were "arguing all the time," so she decided to go out that night with her friend, Dawn Hill. Hernandez and Hill went to a club where they met Javier Avila and his uncle, Porfirio Avila. Hernandez was interested in Javier, and she flirted with him at the club. The Avilas left the club and drove to a car wash, and Hernandez and Hill followed them there. They decided they would drive to Cedar Hill to pick up another friend of Hernandez's. As they drove past Mountain Creek Lake, Hernandez pulled over to the side of the road so Javier would also stop, allowing her to flirt with him some more. Hernandez walked to the driver's side of Javier's car and was flirting with him when appellant, his cousin Augustine Chavez, and appellant's friend Juan Melchor drove up behind Javier in Melchor's van. When Hernandez saw appellant, she walked back to her car. Appellant, Chavez, and Melchor got out of the van and approached Javier's car, and appellant repeatedly fired a gun into Javier's car. Appellant shot Javier in the shoulder, neck, and face, killing him. Porfirio fled from the car and ran away. After the shooting, appellant, Chavez, and Melchor returned to the van and drove away. Hernandez walked back to Javier's car, but when she realized Javier was not going to survive, she drove away in her car with Hill. Hernandez dropped off Hill and then returned to appellant's home. Appellant told Hernandez he blamed her for making him kill Javier. He told her to forget what had happened, and he threatened to kill her if she told anyone about the murder. Chavez testified that on the evening of the murder, he was at his house when appellant, Hernandez, and Hill came by in Hernandez's car to see if he wanted to go "cruising." Chavez joined them, and they drove to Melchor's house. There was not room in Hernandez's car for five people, so appellant and Chavez rode with Melchor in his van. Appellant, Chavez, and Melchor lost sight of Hernandez and Hill for a few minutes, but then they saw Hernandez's car at a car wash and Hernandez standing beside Javier's car talking to him. When Hernandez saw them in the van, she went back to her car and drove away with the Avilas following. Appellant, Chavez, and Melchor followed behind Javier's car. When they got near Mountain Creek Lake, Hernandez pulled over on the side of the road and stopped, followed by Javier and appellant. Hernandez stayed in her car. Appellant reached under the driver's seat and pulled out a large handgun. Appellant got out of the car, walked behind Javier's car, and fired into Javier's car. Porfirio got out of the car and ran away, and appellant fired a shot at him. Appellant got back in the van and drove away from the scene, and Hernandez drove away at the same time. Chavez testified that Hernandez and Hill did not go to a club. Melchor testified he was at his house on the day of the murder when appellant, Hernandez, Chavez, and Hill arrived to go "cruising." Appellant, Chavez, and Melchor rode in Melchor's van with appellant driving, and Hernandez and Hill rode in Hernandez's car. Melchor rode in the back seat of the van, was drinking beer, and did not pay attention to where they were going. At some point, the van pulled over. Appellant got out of the van, and Melchor heard gunshots. Melchor got out of the van and saw appellant holding a revolver. Melchor asked appellant, "[W]hat did you do?" Appellant told him, "Don't say nothing about this, or else." Melchor testified appellant also said "something about Jose is crazy. He always used to say that." They got back in the van and left. Hill testified she, Hernandez, Chavez, and appellant planned to go out. They drove in Hernandez's car to Melchor's house to pick him up. Melchor followed them back to appellant's house in his van. At appellant's house, Hernandez and appellant started fighting, and appellant left with Chavez and Melchor in Melchor's van. Hernandez and Hill then left in Hernandez's car. Hill was uncertain whether they went to a club that night, but she remembered Hernandez talking to Javier at the car wash. Hernandez returned to the car and told Hill the Avilas were going to follow them. As they drove down a long dark road, Javier's car fell behind, and Hernandez pulled over to the side of the road. Javier pulled off the road and stopped behind Hernandez. Hernandez got out of the car, walked over to Javier's car, and talked to him as he sat in his car. About a minute later, Melchor's van drove up. Appellant got out of the van, and he and Hernandez screamed at each other. Javier started to roll up his window and drive away when appellant fired two or three gunshots into Javier's car. Javier's car rolled into a fence and stopped. Hernandez ran to Javier's car and asked him if he was "okay." She opened his car door, started screaming, and returned to her car. Hernandez, crying, told Hill he was dead, and Hernandez drove them to appellant's house. Appellant told Hill, Hernandez, and Chavez that if they told anyone what had happened, he would kill them. Danny Muniz testified he interviewed Porfirio Avila when Porfirio returned home that night. Porfirio told Muniz he was riding with Javier by Mountain Creek Lake when they pulled behind a red car with two girls in it. One of the girls came over to their car and told Javier her sister wanted to meet him. Then a man came up from behind them and ordered them out of the car. The man started shooting, and Porfirio got out of the car and ran for his life. Porfirio told Muniz he thought he and Javier had been ambushed by the women in the car and the man who shot at them.FACTUAL SUFFICIENCY
In his twelfth point of error, appellant contends "the evidence is factually insufficient to support the conviction because the great weight of the evidence established that the killing arose from a robbery attempt by Hernandez and others." In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim. App. 2000). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). To support his argument, appellant cites to various inconsistencies in the witnesses' testimony and the fact that Hernandez started using drugs after the murder. However, regardless of whether the murder was an act of jealous rage or part of a robbery, there is no evidence in the record that anyone other than appellant shot Javier. We conclude the evidence is factually sufficient to support appellant's conviction. We overrule appellant's twelfth point of error.MOTIONS FOR MISTRIAL
In his first through eleventh points of error, appellant contends the trial court erred by overruling his motions for mistrial. We review a trial court's denial of a motion for mistrial under an abuse of discretion standard. See Ladd v. State, 3 S.W.3d 547, 567 (Tex.Crim.App. 1999). Mistrial is a device used to halt trial proceedings when the error is so prejudicial that expenditure of further time and expense would be wasteful and futile. See id. To determine whether a given error necessitates a mistrial, we must examine the particular facts of the case. See id. A mistrial is required only when the impropriety is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors. Hinojosa v. State, 4 S.W.3d 240, 253 (Tex.Crim.App. 1999). The court of criminal appeals has applied six factors in determining an instruction to disregard will cure harm, including harm from prosecutorial misconduct:(1) The weight of other evidence supporting the verdict.
(2) The nature and form of the question(e.g., whether the question was stated as a fact designed to elicit specific evidence of a specific extraneous offense or bad act).
(3) The State's purpose and persistence in asking the question.
(4) Whether other evidence concerning the same subject has been admitted.
(5) The particular instruction given.
(6) The harm to the accused as measured by the severity of the sentence.Hardin v. State, 20 S.W.3d 84, 94 (Tex. App.-Texarkana 2000, pet. ref'd) (creating this list of factors from analysis of numerous court of criminal appeals' opinions). These factors are neither exclusive nor exhaustive. Id. In his first and eighth points of error, appellant contends the trial court erred in overruling his motion for mistrial when the prosecutor implied appellant used violence against Hernandez. In an order on a motion in limine, the trial court directed the parties not to elicit testimony of appellant's history of abusing Hernandez. After Hernandez testified appellant told her to forget about the murder, the following occurred:
Q. [Prosecutor] Why didn't you go call the police?
A. Because I was scared.
Q. Why?
A. Do I need to go into the reasons why?
Q. With what we've discussed, you can't go into anything other than what happened that night.
[Defense Counsel]: Your Honor, can we have a — approach, Judge?
The Court: Yes. Why don't you-all approach.
(At the bench, off the record)
The Court:
Members of the jury, would you-all step in the hallway just for a few seconds.
The Bailiff:
All rise.
(Open court, defendant present, no jury.)
[Defense Counsel]:
And, Judge, we'd like to object and ask for a mistrial then. The State has opened a door to a prior offense to which we have a motion in limine about going into by that last statement of other stuff. It's implying another offense or other allegations going on.
The Court:
The Court will ask the jury to disregard any of that when they come back in and deny your mistrial.The trial court then instructed the jury as follows: "Members of the jury, disregard any type of statement from this witness as it relates to any other stuff." Hernandez's testimony that she was scared but could not go into the reasons why did not imply to the jury that appellant had abused her in the past. Nor does it appear the question was intended to elicit such a statement. From the context of Hernandez's testimony, it appears the prosecutor was trying to elicit testimony that after the murder, appellant threatened to kill Hernandez if she told anyone about the murder. Even if Hernandez's testimony may have implied to the jury that appellant had abused Hernandez previously, the trial court's instruction to disregard "any other stuff," although it could have been stronger, was sufficient to cure any harm. As appellant notes, one of the factors listed in Hardin is the weight of the other evidence of appellant's guilt. Appellant asserts "the weight of other evidence against appellant was weak or at least hotly contested (Hernandez's belated accusation was highly suspicious in light of the numerous contradictions by the other witnesses and due to her role in arranging and controlling all of the events that [led] to the shooting at the remote location)." We disagree. The evidence against appellant was not weak; it was overwhelming. Each witness to the murder testified appellant fired the gun. Even if Hernandez's accusation is "suspicious," appellant's companions, Chavez and Melchor, testified appellant fired the gun. Even if Hernandez arranged and controlled all the events leading to the murder, all the evidence points to appellant firing the gunshots that killed Javier. As for the remaining factors, the form of the question to Hernandez did not imply appellant had physically abused Hernandez, it does not appear the prosecutor was attempting to elicit inadmissible evidence, no evidence appellant had assaulted Hernandez had been admitted, the instruction to disregard "any other stuff" could have been stronger and more specific, and appellant received a life sentence. In balancing these factors, the first factor on the weight of the evidence overcomes any shortcomings from the other factors. We hold the trial court did not err in denying appellant's motion for mistrial. We overrule appellant's first and eighth points of error. In his second and ninth points of error, appellant contends the trial court erred in denying appellant's motion for mistrial after Hernandez testified appellant had been charged with an unspecified extraneous offense. At an earlier setting of the case, Hernandez did not appear, and she led police from several jurisdictions on a long police chase before she was apprehended. During re-direct examination by the prosecutor, Hernandez testified:
Q. Defense attorney was asking you about the setting of this case. Were you — you taking off, did that have anything to do with this case?
A. No, not — honestly, in a little way it did.
Q. In what way?
A. Because just things that I can't go into detail.
Q. Is that based on what the Court's admonished you?
A. I don't understand
Q. I'm trying to figure out — you said you can't go into detail. Who is telling you you can't go into detail?
A. Just — it really wasn't just this trial. It was too — it was too many things going on in my life at the time.
Q. Well, let me ask you this: Were you trying to get away from having to testify here? Was that your main reason for taking off?
A. No, at the time, understanding from talking to you while I was at the halfway house was that he was gonna be going on trial for something other than this at this time.
[Defense Counsel]: I'm gonna object, your Honor.
The Court: Sustained.
[Defense Counsel]: I'll have to ask for —
The Court: Members of the jury, disregard.
[Defense Counsel]: I'll have to ask for a mistrial, Judge.
The Court: Denied."Ordinarily, a prompt instruction to disregard will cure error associated with an improper question and answer, even one regarding extraneous offenses." Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App. 2000). Applying the Hardin factors, as noted above, the weight of the evidence against appellant was overwhelming; the prosecutor's question was why Hernandez tried to avoid having to testify, and Hernandez's answer was not responsive; the State did not pursue the issue of appellant's other charges; and no other evidence was admitted on this issue; the trial court gave an immediate instruction to disregard; and appellant received a life sentence. Nothing in the record indicates Hernandez's answer about appellant having been charged with another offense was so extreme or inflammatory that the jury could not disregard it as instructed by the trial court. Accordingly, we conclude the instruction to disregard cured any harm. We overrule appellant's second and ninth points of error. In his third and eleventh points of error, appellant contends the trial court erred by denying his motion for mistrial when the prosecutor questioned Chavez about whether "appellant was unfaithful to Christina Hernandez." Review of the record shows no evidence was elicited and no questions were asked regarding whether appellant was unfaithful to Hernandez. The portion of the record cited by appellant contains questioning by the prosecutor concerning whether appellant was worried that Hernandez was unfaithful to him, but no inquiry was made regarding appellant's fidelity to Hernandez. Accordingly, appellant's argument is not supported by the record. We overrule appellant's third and eleventh points of error. In his fourth and tenth points of error, appellant contends the trial court erred in overruling his motion for mistrial after the prosecutor elicited testimony from Chavez that appellant sometimes hit Hernandez. Chavez testified as follows:
Q. While you were around Jose, how would Jose react to his fears that Christina was cheating on him?
[Defense Counsel]: Object to speculation, Judge, again.
The Court: Sustained.
Q. I'm not asking you to speculate. I'm asking you to describe to the jury what you would observe. How would he react in terms of how he would react — how would — what would you observe when he was worried about Christina cheating on him?
A. Yelling at her, sometimes hit her.
[Defense Counsel]: Judge, I'm going to object. Now they're trying to get into — may we approach?
The Court: Yes.
(At the bench, off the record.)
(Open court, defendant and jury present.)
The Court: Members of the jury, if you will disregard that last statement.
[Defense Counsel]: And, Judge, the law requires me to ask for a mistrial again.
The Court: Denied.Applying the Hardin factors, the record shows the evidence of appellant's guilt was overwhelming; the prosecutor's question may have been intended to elicit evidence of appellant yelling at Hernandez and may not have been intended to elicit the information that appellant would hit Hernandez, and the prosecutor did not pursue the issue; no other evidence of appellant hitting Hernandez had been admitted; the trial court quickly instructed the jury to disregard; and appellant received a life sentence. We conclude the trial court's prompt instruction to disregard cured any harm. We overrule appellant's fourth and tenth points of error. In his fifth and seventh points of error, appellant contends the trial court erred by denying appellant's motion for mistrial after a detective testified appellant was informed of his Miranda rights and implied appellant invoked his right to remain silent. During the prosecutor's examination of Detective Dick Berry, the following occurred:
Q. And, again, without going into what anyone told you, did you arrest Jose Ramirez?
A. I did, yes.
Q. And did you — without going into what was stated, did you interview him?
A. I did, yes.
Q. Had you read him his Miranda rights?
A. I did, yes.
Q. And what are those?
[Defense Counsel]: Object.
The Court: What's the relevance of that?The trial court then removed the jurors from the courtroom and discussed with the parties the propriety of asking the detective about reading appellant his Miranda rights. The trial court instructed the prosecutor to avoid that subject. The court called the jurors back to the courtroom and instructed them as follows: "Members of the jury, disregard the last statement of this witness." Appellant then moved for a mistrial, which the trial court denied. Harm from testimony alluding to a defendant's invocation of his right to remain silent may be cured by an instruction to the jury to disregard the testimony "unless consideration of the facts of the particular case 'suggest[s] the impossibility of withdrawing the impression produced on the minds of the jury[.]'" Waldo v. State, 746 S.W.2d 750, 754 (Tex.Crim. App. 1988) (quoting Hatcher v. State, 65 S.W. 97, 98 (Tex.Crim.App. 1901)). In this case, the jury heard nothing from which it could infer appellant invoked his right to remain silent. Cf. Dumas v. State, 812 S.W.2d 611, 614 (Tex. App.-Dallas 1991, pet. ref'd) (evidence "led the jury to the inescapable conclusion that Dumas exercised his constitutional privilege to remain silent"). Applying the Hardin factors, the record shows, the evidence against appellant was overwhelming; the prosecutor may have intended to present evidence appellant invoked his right to remain silent after his arrest; the prosecutor did not pursue this issue after the trial court ruled it was inadmissible; no other evidence on this issue was admitted; the trial court, after a delay from an extensive conversation with the attorneys about the evidence, instructed the jurors to "disregard the last statement of this witness"; and appellant received a life sentence. Nothing in the record "suggest[s] the impossibility of withdrawing the impression produced on the minds of the jury." Hinojosa, 4 S.W.3d at 253; Hatcher, 65 S.W. at 98; Wilson v. State, 90 S.W.3d 391, 395 (Tex. App.-Dallas 2002, no pet.). We conclude the trial court's instruction to the jury to disregard was sufficient to cure any harm from the detective's statement that he read appellant his Miranda rights. We overrule appellant's fifth and seventh points of error. In his sixth point of error, appellant contends he "is entitled to a new trial due to the combined effect of the prosecutorial misconduct urged in points one through f[ive]." "It is conceivable that a number of errors may be found harmful in their cumulative effect." Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.Crim.App. 1999). However, as discussed above, appellant's first and third points of error do not show prosecutorial misconduct, and the prejudicial effect from the prosecutorial misconduct, if any, asserted in the second, fourth, and fifth points of error was so slight that the trial court's instructions to disregard readily cured any harm. Accordingly, the record does not show the cumulative effect from any prosecutorial misconduct entitles appellant to a new trial. We overrule appellant's sixth point of error. We affirm the trial court's judgment.