Summary
allowing pregnant witness with risk of miscarriage to testify by means of two-way conferencing system
Summary of this case from Guimaraes v. BrannOpinion
No. 05-08-00839-CR
Opinion issued October 20, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 203rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F07-00814-SP.
Before Justices O'NEILL, FRANCIS, and LANG.
OPINION
A jury convicted Edgar Acevedo of the capital murder of Dallas restaurateur Oscar Sanchez, Jr., and the trial court imposed an automatic life sentence. In three issues, appellant contends the evidence is factually insufficient to support his conviction and the trial court erred in admitting a photograph and allowing a witness to testify by way of a two-way video conferencing system. We affirm. Oscar Sanchez, Jr., was director of operations for the Sanchez family restaurant business. On January 18, 2005, he was driving to a meeting and was on the cell phone with his mother, Laura Sanchez, when he was hit from behind at Winnetka and Canty streets in Dallas. Oscar told his mother what had happened, and she then heard Oscar say, "Hi Richie" or "Hi Lichy," before the phone went dead. Mrs. Sanchez tried to call her son back several times, but he did not answer. Concerned that something was wrong, Mrs. Sanchez immediately drove to the area and found her son's car in the middle of the road, with the driver's side door open and the engine running. Oscar was not there. Oscar lived nearby, and Mrs. Sanchez went to his house to look for him, but no one was home. When she returned to the scene of the accident, a police officer had arrived. As the officer approached her, Mrs. Sanchez received a phone call from Oscar, who told her he had been kidnapped and his abductors wanted "a lot of money" and did not want her to call the police. Mrs. Sanchez explained that the police were already at the scene, and the phone went dead. Minutes later, Mrs. Sanchez received another call. This time the caller, whose voice had been mechanically altered, demanded $3 million for Oscar's safe return. The police took Mrs. Sanchez to the police station where she continued to receive calls over the next several hours from the person with the mechanically altered voice. The calls were taped and played for the jury. Despite her pleas, the caller would not allow Mrs. Sanchez to speak with Oscar. At the instructions of the police, Mrs. Sanchez tried to delay the kidnappers to give the police more time to identify them by pretending to get the ransom money and to drive to a drop location in Arlington. The kidnappers stopped calling after midnight. Mrs. Sanchez told the police that a woman named "Lichy" worked for her twenty years ago but that Oscar had only seen her when he was a young boy and would not recognize her. She also told the police that her family employed a waiter named Richie, but she believed he was out of the country. Family members pulled the employment file of Ricardo Lopez, who they knew as Richie, and learned his real name was Edgar Acevedo and that he lived at 302 Royal in Duncanville. Law enforcement officials determined the ransom calls were coming from a pre-paid cell phone bought by Jose Felix, who also lived at 302 Royal in Duncanville. The police obtained a search warrant and set up surveillance at the house at about 6 p.m. Police planned to execute the warrant after attempting a fake money drop. During the surveillance, no activity occurred at the house. When no one showed up at the drop site by 3 a.m., the police executed the warrant on the house and found a "bloody scene" in the master bedroom. Blood was on the floor, mattress, walls, and blinds, and the room was in "disarray." Police found fired cartridge cases, broken pieces of a statuette, and bullet holes in a window sill. No one was in the house. Among other things, police collected the fired cartridge cases, the broken pieces of the statuette, a second statuette with a bloody palm print, a back pack, duct tape, a box of .25-caliber ammunition, a bullet found on the bed, and a ski mask. Police obtained arrest warrants for appellant and Felix. Through ATM and debit card transactions, police tracked appellant and Felix to Chicago and learned the two had purchased one-way airline tickets to Mexico on separate flights. Dallas police contacted Chicago police, who arrested Felix at the airport on January 23. Felix had in his possession the cell phone used to make the ransom calls and a voice distorter. Appellant had flown out the previous day and was arrested in Mexico nine months later. Nine days after Oscar was kidnapped, the police found his body in a field off Interstate 20. An autopsy revealed he suffered a gunshot wound and nineteen lacerations to his head, abrasions and scrapes on his face, and broken fingers. The medical examiner concluded his cause of death was homicidal violence resulting from two lethal injuries — the gunshot wound and multiple blunt-force trauma to his head. Additionally, he said the broken statuette taken from the crime scene could have caused the blunt force trauma. Forensic testing linked both appellant and Felix to the crime scene. The evidence showed appellant's fingerprints on the box of ammunition and on the outside of the car police believed was used to transport Oscar from the kidnapping scene. Additionally, a number of genetic markers corresponding to markers in appellant's DNA were detected at a low level in a piece of the broken statuette (statistical weight of one in 116 persons) and under Oscar's fingernails (one in forty-five persons). Although the items were a low match, the testing excluded every other possible suspect. Appellant also was the major contributor of DNA found on the ski mask. As for Felix, testing showed, among other things, that the palm print found in blood on one of the statuettes was his. Appellant's sister, Gabriella Acevedo Garcia, testified from Chicago by way of video conferencing conducted over appellant's objection. She received a call in January 2005 from her brother saying he and Felix were on their way to Chicago. The two arrived that same night and were not dressed for Chicago weather and did not have suitcases. Neither appeared to be injured or hurt in any way and she never saw any hint of a problem between them. Upon arrival, they went right to sleep. The next day, Garcia went with appellant and Felix to Wal-Mart and later stayed in the car while appellant appeared to go to a travel agency and Felix went toward some other stores. That afternoon, she and Felix took appellant to the airport. The next morning, Felix took a taxi to the airport. Garcia did not know where the two were headed. Appellant called on the day Felix was arrested; Garcia told him she was at the police station, and appellant hung up. Appellant testified he was not involved in Oscar's kidnapping or murder and that any actions he took were because Felix threatened the life of his sister. Appellant said he had worked at two Sanchez family restaurants for several years before quitting a couple of months before Oscar's kidnapping; he planned to travel to Europe with Felix. Appellant acknowledged that Oscar probably knew him as "Richie." Appellant had known Felix since 2002 and, at the time of the incident, had been living with him for several months. Appellant said it was not a romantic relationship, although the two were sharing a bed. Appellant and Felix traveled extensively together and had met each other's families. In the days before Oscar's death, appellant said Felix started drinking more, taking unprescribed medications, and socializing with people appellant did not know. On the morning of Oscar's kidnapping and murder, appellant said he woke up and Felix was gone. Later that morning, he heard the garage door open and heard voices. When he looked out, Felix and a second man he did not know were bringing in someone whose face was covered with a cloth. When the cloth was removed, appellant recognized the man as Oscar Sanchez. Appellant said Felix and the unidentified man had weapons, and he believed others were present because he heard voices. Appellant said he asked what was going on, and the unidentified man threw him to the ground, put a gun to his head, and tied his hands with hard plastic. Appellant said he thought they were going to kill him. He was put in a front bedroom, where his mouth was taped and he was told not to move. Appellant said he heard noises, "like something hitting the wall," and heard Oscar scream. The unidentified man returned and took appellant to the master bedroom where Oscar was being held. Everything in the room was "scattered." The man untied appellant's hands and ordered him, at gunpoint, to wrap Oscar's hands in tape. Appellant complied, and they took appellant out of the room. Appellant said he heard a struggle and then gun shots. According to appellant, Felix and the second man ordered appellant to pick up some clothes and a box of ammunition, then covered his face, tied him up again, and put him in the backseat of a truck. While riding in the truck, he said he heard Felix on the phone and heard the word "millions." Appellant said he was taken to an empty house and left there for a while. When the kidnappers returned, Felix threatened him with a gun while another man held a phone to his ear. A man on the phone claimed to be "just a few steps" from appellant's sister in Chicago, causing appellant to fear for her life. During his ordeal, appellant said he was beaten in the stomach and face by the unidentified man while Felix laughed. Felix told appellant he was "his way out" and, eventually, removed appellant's ties and said they were going to Chicago. Appellant called his sister and told her they were coming. Before they arrived at her house, appellant said Felix warned him to "be calm" and to act "as if nothing was happening." Later, he flew to Mexico on Felix's order. When he arrived there, he called his sister and she said she was "fine." The next day, he called again and she was with police, and appellant said he knew she was okay and hung up. On cross-examination, appellant acknowledged that, even after Felix's arrest, he never warned his sister or other family members that they could be in danger nor did he tell anyone, even when he knew there was a "massive manhunt" for him, that he was crime victim. Appellant also could not explain the logic of Felix allowing him to live since he was the only one who could identify Oscar's killers or why it benefitted Felix to allow appellant to fly out of the country first. In his first issue, appellant argues the evidence is factually insufficient to support his conviction because the evidence showed he was acting under duress. On a factual sufficiency challenge, we view all the evidence from a neutral perspective. Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). The evidence, though legally sufficient, is factually insufficient if it is so weak that the jury's verdict seems clearly wrong and manifestly unjust, or if, considering conflicting evidence, the jury's verdict, though legally sufficient, is nevertheless against the great weight and preponderance of the evidence. Berry v. State, 233 S.W.3d 847, 854 (Tex. Crim. App. 2007). A clearly wrong and unjust verdict occurs where the jury's finding is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Id. A factual sufficiency review permits the reviewing court to substitute its judgment for the jury on the credibility and weight determinations but only "to a very limited degree." Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006) (explaining that factual sufficiency jurisprudence still requires appellate court to afford "due deference" to jury's determination). A person commits capital murder if he intentionally or knowingly causes the death of a person and intentionally commits the murder in the course of committing or attempting to commit kidnapping. Tex. Penal Code Ann. §§ 19.02(b)(1); 19.03(a)(2) (Vernon 2003 Supp. 2008). A person commits kidnapping if he intentionally or knowingly abducts another person. Tex. Penal Code Ann. § 20.03 (Vernon 2003). Duress is an affirmative defense requiring the defendant to prove by a preponderance of the evidence that he committed the offense "because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another." See Tex. Penal Code Ann. §§ 2.04(d), 8.05(a) (Vernon 2003); Guia v. State, 220 S.W.3d 197, 205 (Tex. App.-Dallas 2007, pet. ref'd). To establish compulsion, the defendant must prove that "the force or threat of force rendered a person of reasonable firmness incapable of resisting the pressure." Tex. Penal Code Ann. § 8.05(c); Guia, 220 S.W.3d at 205. Appellant argues most of the State's evidence "squarely pointed" at Felix while the forensic evidence against him could be explained because he lived in the house (fingerprints on the ammunition box and car and DNA on the ski mask) and the evidence was a low match (fingernail DNA). He further argues he participated in the offense only because he was under duress, and given the conflicting evidence, the verdict is against the great weight and preponderance of the evidence. We disagree. The only evidence of duress came from appellant's testimony, and the jury was not bound to accept appellant's version of the events in this case. To the contrary, the jury heard evidence from which it could rationally conclude beyond a reasonable doubt that appellant kidnapped Oscar and participated in killing him. Specifically, Oscar identified his kidnapper at the moment he was abducted when he said, "Hi, Ritchie," and was overheard by Mrs. Sanchez. The only Richie Mrs. Sanchez knew, and she believed Oscar knew, was appellant, who had worked at the family restaurants for years. Appellant's DNA was found under Oscar's fingernails and on a piece of a broken statuette the medical examiner testified could have been the object used to beat Oscar in the head. While the DNA testing showed a "low match," it excluded every other possible suspect. Moreover, appellant's fingerprint was on a box of ammunition that was the same caliber, make, manufacturer, and head stamp as the fired cartridge cases found at the crime scene. Finally, the evidence showed appellant and Felix had been close friends for years and were living together and shared a bed at the time of the offense. They had traveled extensively together and met each other's families. Neither was employed, but they were planning a trip to Europe. Appellant nevertheless maintains he was forced to participate in the offense by Felix although his claims that he acted under duress were discredited by his sister's testimony as well as the logical gaps in his story. He said he was beaten and in fear for his sister's life, yet Garcia testified appellant did not appear injured or hurt when he arrived in Chicago and she noticed no hint of any problems between him and Felix. Moreover, he never once tried to warn her she was in any danger, either before or after Felix's arrest. In fact, appellant acknowledged that during the nine months he was free while authorities were searching for him or during the six months he was awaiting extradition to the United States, he never once reported to any authority or anyone else that he had been tied up, beaten, threatened, and forced to assist Oscar's assailants. The jury may not have believed that Felix would allow the only eyewitness to live and would force him on an airplane to Mexico, where he would then be free to identify Felix as Oscar's assailant. Reviewing all the evidence in a neutral light, we conclude it was factually sufficient to support both the verdict and the rejection of appellant's duress defense. We overrule the first issue. In his second issue, appellant asserts the trial court erred in admitting State's Exhibit No. 3, a photograph of Oscar holding his newborn baby. Appellant contends the evidence was irrelevant, inflammatory, and unduly prejudicial. The admissibility of a photograph lies within the sound discretion of the trial judge. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). As a general rule, a photograph is admissible if verbal testimony regarding what is depicted in the photograph is also admissible and the probative value of the photograph is not substantially outweighed by any of the rule 403 counter-factors. Threadgill v. State, 146 S.W.3d 654, 671 (Tex. Crim. App. 2004). Rule of evidence 403 favors the admissibility of relevant evidence, and the presumption is that relevant evidence will be more probative than prejudicial. Long v. State, 823 S.W.2d 259, 271 (Tex. Crim. App. 1991). This Court's analysis under rule 403 considers (1) the probative value of the evidence, (2) the ability of the photograph to impress the jury in some irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the proponent's need for the evidence. Erazo v. State, 144 S.W.3d 487, 492-96 (Tex. Crim. App. 2004). State's Exhibit No. 3 depicted Oscar holding his newborn baby. At trial, Mrs. Sanchez testified, without objection, that Oscar's daughter, Helena, had been born the month prior to Oscar's kidnapping and murder. The photograph was relevant to show a true appearance of Oscar prior to his death. See Fails v. State, 999 S.W.2d 144, 146 (Tex. App.-Dallas 1999, pet. ref'd). Applying the rule 403 considerations, the photograph was probative evidence of Oscar's appearance, and the State took little time to develop this evidence. Additionally, this was the only pre-death photograph offered. The real crux of appellant's argument is that the photograph, because it depicted a baby, created an "`aww' factor" that unduly prejudiced the jury. We find it unlikely the photograph generated any more sympathy than that generated by Mrs. Sanchez's testimony. Moreover, no mention was made of the photograph during closing arguments, nor was any mention made of Oscar's newborn daughter. We conclude the photograph was relevant and its probative value was not outweighed by the danger of unfair prejudice. See Fails, 999 S.W.2d at 146-47 (concluding photograph of victim with her daughter, taken before offense, was relevant and probative value not substantially outweighed by danger of unfair prejudice). We overrule the second issue. In his third issue, appellant complains the trial court erred in allowing his sister to testify from Chicago by way of a video conferencing system in violation of his Sixth Amendment right to confrontation. Two witnesses testified in a hearing outside the presence of the jury: Mike Carroll, director of information systems for the Cook County State Attorney's Office in Illinois, and Garcia. Carroll described the two-way, real-time video conferencing system used for Garcia's testimony. Carroll explained the system allowed Garcia to testify at a laptop computer with a Web camera and microphone, use a secure Internet channel for audio and video communication, and allowed participants to hear, see, and react in real time. Carroll, who testified from Chicago, described the courtroom and said he could see the prosecutor, judge, and three persons seated at the defense counsel table. Garcia confirmed she could see the courtroom and, in particular, appellant, while those in the Dallas courtroom were able to hear and observe Garcia on a large screen. She testified she was three-and-a-half months pregnant, had a history of miscarriage, and was under doctor's orders to rest because she had experienced "several threats" of miscarriage during this pregnancy. Garcia said her condition required her to see her physician every two weeks and she had last been to his office six days earlier. She said her doctor instructed her to "have plenty of rest," not to leave her house "too often," not to "carry things," and not to climb stairs. Because her pregnancy "started very bad," she said she had been unable to work. Garcia testified she feared she would lose her baby if she traveled to Dallas for the trial. She explained she was not concerned so much with getting on an airplane as she was the rigors of traveling to and from the airport and hotel and waiting in the airport. She acknowledged she had not specifically asked her doctor if she could travel, but said it was obvious to her that he would recommend against it given his instructions. At the conclusion of the hearing, appellant objected to Garcia testifying by video conferencing as a violation of his Sixth Amendment right to confrontation. He argued no expert medical testimony regarding her condition was presented and complained the jury would be impeded in its evaluation of Garcia's demeanor by having her testify by video technology. The trial court overruled the objection and made oral findings regarding both the video conferencing system and the need for it in this case. The trial court found the system allowed (1) contemporaneous transmission and cross-examination; (2) appellant to see Garcia and Garcia to see the attorneys for the State, appellant's attorney, and appellant himself; and (3) the jury to be able to observe Garcia on a large screen, hear her testimony, and observe her demeanor. Additionally, the trial court found the State had established a need for Garcia, who had a high-risk pregnancy, to testify by two-way video technology. The court found, although no doctor had testified, that Garcia was truthful in her description of her doctor's orders and the doctor had ordered rest. Finally, the trial court determined Garcia's condition constituted an exceptional circumstance allowing her to testify by Web cam without violating appellant's Sixth Amendment right to confrontation. The Sixth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment provides, in pertinent part, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI; Pointer v. Texas, 380 U.S. 400 (1965). This clause, known as the Confrontation Clause, "guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." Coy v. Iowa, 487 U.S. 1012, 1016 (1988). The right includes not only a "physical examination" but also (1) ensures a witness will testify under oath, "impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury;" (2) forces the witness to submit to cross-examination, "the `greatest legal engine ever invented for the discovery of the truth;'" and (3) permits the trier of fact to observe the witness's demeanor when giving testimony, "thus aiding the jury in assessing his credibility." Maryland v. Craig, 497 U.S. 836, 845-46 (1990). The combined effect of these elements serves the central concern of the Clause: "to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Id. at 845. This right to a physical face-to-face meeting, however, is not absolute and must "give way" in certain narrow circumstances where "considerations of public policy and necessities of the case" so dictate. Id. at 848. In Craig, the Supreme Court upheld, over a defendant's Sixth Amendment challenge, a Maryland rule of criminal procedure allowing child victims of abuse to testify by one-way closed circuit television from outside the courtroom. Id. at 858. The defendant could see the testifying child witness on a video monitor, but the child witness could not see the defendant. Id. at 841-42. The defendant contended the procedure violated his Sixth Amendment right to confrontation because he was denied a physical face-to-face encounter with the witness. Id. at 842. The Supreme Court approved Maryland's rule, stating: "though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee of the right to confront one's accusers." Id. at 849-50. The Court explained that "a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Id. at 850. Here, appellant argues the procedure violated his Sixth Amendment rights because the State failed to establish the requisite necessity. In particular, appellant compares the evidence of Garcia's condition to that established in two cases in which a two-way, closed-circuit set up was allowed for the testimony of physically infirm or ill witnesses from remote locations. See Stevens v. State, 234 S.W.3d 748, 781 (Tex. App.-Fort Worth 2007, no pet.) (seventy-five-year-old nonvictim witness suffered from heart problems and health status was "quite tenuous") and Gigante v. United States, 166 F.3d 75, 79 (2nd Cir. 1999) (nonvictim witness was in final stages of inoperable, fatal cancer). In both of those cases, he argues, the trial court had evidence from the witness's doctor whereas no expert medical evidence was provided in this case. Additionally, he asserts "pregnancy, even a difficult one, is fundamentally different from terminal illness or infirmity in an elderly person. A trial can easily be continued until the pregnancy is over." Initially, we note appellant does not direct us to any place in the record where he requested the trial court to continue the case until Garcia could travel. The trial court heard evidence and made case-specific findings that Garcia had a high-risk pregnancy, had suffered one miscarriage, and did not want to "run the risk of losing another baby." Although the court noted it had not heard from Garcia's doctor, she found Garcia credible and truthful in her testimony regarding her doctor's orders. Those orders required that she rest, which Garcia believed would preclude the rigors of traveling between Illinois and Texas. While we do not consider lightly the circumstances warranting an exception to face-to-face confrontation, we consider the health of a mother and her unborn baby no less important than a terminal illness or infirmity in an elderly person. Moreover, the two-way video conferencing system preserved all of the other characteristics of in-court testimony. Garcia was sworn and subject to full cross-examination by appellant. She testified in full view of the jury, trial court, defense counsel, and appellant himself. Finally, the jury was able to contemporaneously hear her answers while observing her mannerisms and demeanor. We conclude the trial court did not err in finding Garcia's medical condition constituted an exceptional circumstance that warranted permitting her testimony by remote two-way video conferencing or in determining the system used by the State did not deprive appellant of his Sixth Amendment rights. We overrule the third issue. We affirm the trial court's judgment