Opinion
NO. 01-16-00391-CR
10-12-2017
WILMER ALBERTO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas
Trial Court Case No. 1447349
MEMORANDUM OPINION
Wilmer Alberto was convicted of murdering his live-in girlfriend, Delmy Martinez. In two issues, Wilmer contends that the trial court committed reversible error by (1) overruling his objection to testimony that contained inadmissible hearsay and (2) sustaining the State's objections to documents proffered by Wilmer to establish an alternative perpetrator. We affirm.
Background
Wilmer lived with Delmy and her two sons, pseudonymously referred to as Luis and Juan. By many accounts, Wilmer was a controlling and jealous boyfriend, and the couple fought often.
One afternoon, when Luis and Juan returned home from school, they found Delmy dead in her bedroom. She had been shot eight times. Next to her body were love letters that she had received from a man in prison, along with photographs of Delmy hugging and kissing another man. Wilmer was nowhere to be found. His clothing and personal belongings had been removed from the house, and both his SUV and Delmy's car were missing.
Wilmer's SUV was found in a strip center parking lot two blocks from Delmy's home. Delmy's car was found in the possession of Wilmer's boss, Carlos Bejarano, with Delmy's purse, wallet, and identification still inside. Carlos told the police that Wilmer owed him money and had given him the car to pay off the debt. Carlos further explained that, after Wilmer gave him the car, he drove Wilmer to Dallas because Wilmer "had some problems" and "wanted to leave" town. All this happened on the same day Delmy's body was found.
The police eventually apprehended Wilmer in Washington, D.C. He was extradited to Texas, where he was tried for the murder of Delmy. The jury found him guilty, and the trial court sentenced him to confinement for life. Wilmer appeals.
Hearsay
In his first issue, Wilmer contends that the trial court abused its discretion in overruling his objection to certain testimony from Delmy's son, Juan. On cross-examination, Wilmer asked Juan whether he had ever heard or seen Wilmer physically threaten anyone. Juan gave the following, somewhat confusing, response:
No, but my mom said that he look at him that he wanted to try to kill or burn ex-wife that he had that she was inside of trailer.Wilmer objected to Juan's testimony on hearsay grounds, and the trial court overruled Wilmer's objection.
Juan's response was translated from Spanish to English by a court interpreter.
Wilmer argues that the trial court's ruling was erroneous because Juan's testimony contained an out-of-court statement from Delmy that was offered to prove the truth of the matter asserted. Wilmer further argues that the trial court's ruling was harmful because there was no other evidence that Wilmer had told Delmy that he wanted to try to kill his ex-wife or had made any other comment indicating a propensity to violence. The State responds that, even if Juan's testimony was hearsay, its admission was not harmful because the testimony did not affect the verdict.
A. Standard of review and applicable law
We review hearsay challenges to a trial court's admission of evidence for an abuse of discretion. Infante v. State, 404 S.W.3d 656, 662 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
"Hearsay" is "a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." TEX. R. EVID. 801(d). Hearsay is inadmissible unless a statute or rule provides otherwise. See Martinez v. State, 186 S.W.3d 59, 66 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd); see also TEX. R. EVID. 802.
The erroneous admission of a hearsay statement is non-constitutional error; it entitles the defendant to reversal only if it affects the defendant's substantial rights. TEX. R. APP. P. 44.2(b); Coleman v. State, 428 S.W.3d 151, 162 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd). A defendant's substantial rights are affected if the hearsay's admission has "a substantial or injurious effect in determining the verdict." Coleman, 428 S.W.3d at 162. "We do not overturn a conviction if, after examining the record as a whole, we have fair assurance that the error did not influence the verdict or had but a slight effect." Id.
B. Analysis
Assuming without deciding that Juan's testimony was inadmissible hearsay, we hold that any error in admitting it was harmless because it did not affect Wilmer's substantial rights. See id.
Juan's testimony was not emphasized by the State. In fact, after the trial court overruled Wilmer's objection, neither party brought up the challenged testimony again. Juan's testimony was not essential to the State's case. It was not even offered by the State. Instead, it was offered (inadvertently) by Wilmer in an apparent attempt to show that he had no history of making violent threats. Juan's testimony was not particularly probative. It was not direct evidence that Wilmer murdered Delmy. And it was confusing. From the translation, it is not even clear what exactly Juan was trying to say. At most, Juan's testimony suggested that Wilmer was capable of being violent (or wanted Delmy to think he was capable of being violent).
The State, moreover, presented compelling evidence that Wilmer murdered Delmy. Numerous witnesses—including Delmy's sons, Luis and Juan, and Delmy's sister, Ana—testified that Wilmer was a jealous and controlling boyfriend.
Luis testified that, in the weeks leading up to the murder, Wilmer and Delmy were fighting constantly, and Delmy asked Wilmer on multiple occasions to leave their home. Ana testified that, several days before the murder, she received an "urgent" call from Wilmer, who told her that he and Delmy had been in a fight and that Delmy would not forgive him. Wilmer went on to say that if Delmy "didn't forgive him, he didn't know what he was going to do but that he couldn't live without her." Juan testified that, the evening before the murder, Wilmer got in his car and followed Delmy when she went out with a friend.
At some point before Delmy's murder, Wilmer discovered that Delmy had been exchanging love letters with a man in prison. And these love letters were found near her body, along with photographs of her hugging and kissing another man.
A neighbor placed Wilmer at or near the house around the time of the murder. The neighbor testified that she saw Wilmer arriving home in his SUV around 3:15 p.m. Wilmer went inside for twenty minutes or so, came outside for a moment, and then went back inside the house. Later, around 3:50, roughly ten minutes before Delmy's sons returned home, the same neighbor noticed that Wilmer's SUV was gone and that Wilmer was backing out of the driveway in Delmy's car. See Wolfe v. State, 917 S.W.2d 270, 275 (Tex. Crim. App. 1996) (guilty verdict supported by evidence, including evidence that appellant "was seen within a few blocks of the crime scene shortly before and shortly after the murder").
Wilmer's SUV was later found in a strip center parking lot two blocks from the scene of the murder. The State presented low-quality video surveillance recorded by one of the stores on the day of the murder that showed a man parking Wilmer's SUV, getting out, and walking toward Wilmer and Delmy's house.
When Delmy's body was found, Wilmer's clothing and personal items were missing. But there were no signs of forced entry or any other evidence that the house had been burgled. See Guevara v. State, 152 S.W.3d 45, 51 (Tex. Crim. App. 2004) (lack of evidence of forced entry supported inference that murder was not result of botched robbery).
Wilmer's boss, Carlos, testified that on the day Delmy was murdered, Wilmer called him at work around 3:45 p.m. and told him that he "had some problems" and "wanted to leave" town. Carlos agreed to drive Wilmer to Dallas and invited a friend, Julio Itrube, to accompany them on the drive.
Julio testified that Wilmer told him he was on his way to Washington D.C. to see a relative.
Wilmer later showed up at work in Delmy's car, which he told Carlos he could keep because he owed Carlos money. Delmy's purse, wallet, and identification were later discovered inside the car.
The three left for Dallas in Carlos's truck around 5:30 p.m. During the drive, Wilmer told Carlos and Julio that he had confronted Delmy about some letters she had been receiving from the prison inmate. Julio testified that Wilmer seemed sad and was crying. See Hedrick v. State, 473 S.W.3d 824, 831 (Tex. App.—Houston [14th Dist.] 2015, no pet.) ("A consciousness of guilt is perhaps one of the strongest kinds of evidence of guilt.").
Considering the record as a whole, we have fair assurance that Juan's testimony did not influence the verdict or had but a slight effect. Coleman, 428 S.W.3d at 162. Therefore, we hold that any error in admitting Juan's challenged testimony was harmless because it did not affect Wilmer's substantial rights. Accordingly, we overrule Wilmer's first issue.
Alternative Perpetrator Evidence
In his second issue, Wilmer contends that the trial court abused its discretion by excluding evidence of an alternative perpetrator.
Wilmer's defensive theory was that another man, Inmer Rodriguez, murdered Delmy. Inmer is Delmy's ex-boyfriend and the father of one of her sons, Luis. In 2007, when Inmer and Delmy were still dating, Delmy accused Inmer of sexually assaulting her and threatening her and Luis with violence. Delmy applied for and obtained a protective order, and Inmer was indicted for sexual assault.
During his trial, Wilmer sought to introduce court documents related to Inmer's alleged sexual assault and violent threats. Specifically, he sought to introduce (1) Delmy's application for a protective order, (2) the criminal complaint accusing Inmer of sexual assault, (3) the indictment charging Inmer with sexual assault, and (4) a motion to dismiss the sexual-assault charge filed by the State after Delmy's death.
The trial court excluded all four documents, finding that the protective-order application was inadmissible because it contained a significant amount of hearsay (namely, Delmy's sworn allegations against Inmer) and that the complaint, indictment, and motion to dismiss were inadmissible because they were not relevant.
The trial court found that the complaint contained hearsay as well.
C. Standard of review and applicable law
A defendant may attempt to prove his innocence by showing that someone else committed the crime. Dukes v. State, 486 S.W.3d 170, 178 (Tex. App.—Houston [1st Dist.] 2016, no pet.). However, to present evidence of an alternative perpetrator, the defendant must show that the evidence is sufficient, either on its own or in combination with the other evidence in the record, to establish a nexus between the crime charged and the alleged alternative perpetrator. Id.
To establish such a nexus, "the evidence must connect the alleged alternative perpetrator to the specific offense." Dickson v. State, 246 S.W.3d 733, 741 (Tex. App.—Houston [14th Dist.] 2007, pet. ref'd). "It is not sufficient for a defendant merely to offer up unsupported speculation that another person may have done the crime." Dukes, 486 S.W.3d at 179 (quoting Wiley v. State, 74 S.W.3d 399, 407 (Tex. Crim. App. 2002)).
We review a trial court's exclusion of alternative perpetrator evidence for an abuse of discretion. Dukes, 486 S.W.3d at 179. "A trial court does not abuse its discretion in excluding evidence of an alternative perpetrator if its ruling was within the 'zone of reasonable disagreement.'" Id.
D. Analysis
We first address Delmy's protective-order application, which the trial court excluded on hearsay grounds. On appeal, Wilmer argues for the first time that the application was admissible under the public records exception to the rule against hearsay. See TEX. R. EVID. 803(8). Because Wilmer did not make this argument in the trial court, he has waived it on appeal. See Willover v. State, 70 S.W.3d 841, 845-46 & n.4 (Tex. Crim. App. 2002) (proponent of hearsay evidence must specify in trial court under which hearsay exception evidence is admissible).
We next address the complaint, indictment, and motion to dismiss, which the trial court excluded on relevancy grounds. This evidence shows that Inmer was charged with sexually assaulting Delmy in 2007 and that the case against him was dismissed in 2016 because Delmy had died. Wilmer contends that these documents, considered together with evidence that Inmer came to Houston immediately after Delmy's murder to pick up their son, Luis, established a sufficient nexus between Inmer and Delmy's murder. We disagree.
Wilmer suggests (without explicitly arguing) that this evidence shows that Inmer was (and presumably still is) violent, that he had a motive to murder Delmy (i.e., the dismissal of the pending sexual-assault charge), and that he was in Houston at the time of the murder.
Although this evidence indicates that Inmer may have sexually assaulted and threatened Delmy around seven years before her murder, none of it links Inmer to her murder. See Dukes, 486 S.W.3d at 179 (holding that evidence that others threatened to kill complainant week before shooting was insufficient to create nexus); see also Clarke v. State, 2014 WL 1514326, at *4-6 (Tex. App.—Beaumont April 16, 2014, no pet.) (mem. op., not designated for publication) (holding that evidence that father of complainant's child had motive and history of fighting with complainant was insufficient to establish nexus).
The evidence does not show that Inmer and Delmy were fighting or even in contact with each other during the months leading up to her murder. Nor does it show that he was in Texas at the time of the murder.
Luis testified that he never saw his father during the time he was living with Delmy. He explained that Inmer was living in Maryland when Delmy was murdered and that it took him two days to drive to Houston to pick him up. Ana testified that Inmer was living in Maryland at the time of the murder and that he came back to Houston after Delmy was murdered to care for Luis. Ana further testified that she spoke with Delmy almost daily and that Delmy had only been fighting with Wilmer around the time of the murder. And Juan testified that Delmy had not spoken to Inmer and was not fighting with him around the time of the murder.
Wilmer has failed to establish that the complaint, indictment, and motion to dismiss link Inmer to the murder of Delmy. Because Wilmer has not shown a nexus between his evidence of an alternative perpetrator and the crime charged, the trial court did not abuse its discretion in excluding it. Accordingly, we overrule Wilmer's second issue.
We note that a substantial portion of Wilmer's alternative-perpetrator theory made its way in front of the jury through the admission of a protective order entered against Inmer.
Conclusion
We affirm the trial court's judgment.
Harvey Brown
Justice Panel consists of Justices Jennings, Bland, and Brown. Do not publish. TEX. R. APP. P. 47.2(b).