Opinion
No. 04-19-00216-CR
07-15-2020
Luis Antonio ARROYO, Appellant v. The STATE of Texas, Appellee
MEMORANDUM OPINION
From the 227th Judicial District Court, Bexar County, Texas
Trial Court No. 2018-CR-5532
Honorable Laura Lee Parker, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Beth Watkins, Justice AFFIRMED
The Honorable Kevin O'Connell is the presiding judge of the 227th Judicial District Court, Bexar County, Texas. The Honorable Laura Parker, sitting by assignment, signed the judgment of conviction that is the subject of this appeal.
Luis Antonio Arroyo ("Arroyo") appeals his jury conviction for the offense of escape, a third-degree felony. See TEX. PENAL CODE ANN. § 38.06(c). The jury found the enhancement allegations to be true that Arroyo previously had been convicted of two or more felony offenses and assessed punishment at ninety-nine years imprisonment. In four issues, Arroyo argues (1) the evidence is legally insufficient to support the date of the offense; (2) the trial court abused its discretion by admitting evidence of an extraneous capital murder offense during the punishment phase of trial; (3) the State's closing argument in the punishment phase of trial violated his due-process rights and constituted prosecutorial misconduct; and (4) the State engaged in prosecutorial vindictiveness. We affirm.
I. BACKGROUND
On May 31, 2018, Arroyo was indicted for the offense of escape. The indictment alleged that on or about March 2, 2018, Arroyo, after being charged with the offense of capital murder, did intentionally and knowingly escape from the custody of the Bexar County Sheriff at a time when Arroyo was confined in the Bexar County Jail. After a trial by jury, Arroyo was found guilty of the offense of escape. The jury found the enhancement allegations to be true and assessed punishment at ninety-nine years imprisonment.
II. SUFFICIENCY OF THE EVIDENCE
Arroyo argues there was a material variance between the date of the offense alleged in the indictment and the evidence adduced at trial, which rendered the evidence legally insufficient to support the date of the offense.
STANDARD OF REVIEW & APPLICABLE LAW
When reviewing the sufficiency of the evidence to support a criminal conviction, we consider all of the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Powell v. State, 194 S.W.3d 503, 506 (Tex. Crim. App. 2006) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). We must give deference to "the responsibility of the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson, 443 U.S. at 318-19).
A "variance" occurs when there is a discrepancy between the allegations in the indictment and the evidence presented at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). "A variance between the wording of an indictment and the evidence presented at trial is fatal only if 'it is material and prejudices [the defendant's] substantial rights.'" Id. at 257 (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000)). A variance is material and prejudices the defendant's substantial rights when the indictment, as written, fails to inform the defendant of the charge against him to allow him to sufficiently prepare an adequate defense at trial and subjects the defendant to the risk of being prosecuted later for the same crime. Id.
DISCUSSION
Contrary to Arroyo's assertion, we conclude there is not a variance, fatal or otherwise, between the date alleged in the indictment and the evidence adduced at trial. Here, the indictment alleged that the offense of escape occurred "on or about" March 2, 2018. The State is not required to prove the specific date alleged in the indictment. See Klein v. State, 273 S.W.3d 297, 303 n.5 (Tex. Crim. App. 2008). Rather, "the 'on or about' language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period." Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997); see also Thomas v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988) ("[P]roof of a date within the limitations period but other than that alleged [in the indictment] does not amount to a variance which will threaten the validity of any ensuing conviction."). Although the State is not required to prove the specific date alleged in the indictment, we conclude the evidence presented at trial was sufficient to prove that the offense of escape occurred on or about March 2, 2018, as alleged in the indictment.
At trial, the State presented Gina Martinez, a fingerprint examiner with the Bexar County Sheriff's Office ("BCSO"). Martinez testified about "booking slips" belonging to Arroyo. According to Martinez, a booking slip is a document that is generated when an individual is arrested with the BCSO. The document identifies the offense the individual is charged with, lists the booking date, and provides the individual's fingerprints. Martinez testified that Arroyo's booking slip was for the offense of capital murder and the booking date was January 24, 2016. Arroyo had an additional booking slip for an "add-on" charge, which Martinez explained as a charge that was added on to what Arroyo was initially arrested for. The add-on charge was for the offense of escape and the booking date was January 24, 2016. Martinez testified that neither booking slip indicated that Arroyo had been released from the Bexar County Adult Detention Center ("BCADC").
The State presented seven witnesses who testified to the events of March 2, 2018. Jesse Garza, a deputy at the BCADC, testified that an emergency escape code was broadcasted over the jail intercom on the morning of March 2, 2018. The jail was locked down and an inmate headcount was conducted. After inspecting each cell in his unit, Garza discovered that Arroyo and two other inmates were missing from their assigned jail cells. Sergeant Octavia Mitchell, the custodian of records for the BCADC, testified about surveillance footage which depicted the front exterior of the BCADC on March 2, 2018. The surveillance footage, which is dated March 2, 2018, showed three inmates using a white bed sheet to scale down the front of the jail to the ground, who then entered a white vehicle parked in front of the jail. Deputy Janice Henry, a crime scene investigator with the BCSO, testified to photographing and videotaping the scene at the jail on March 2, 2018. Mark Baldobino, the custodian of records for Sonic Drive-in, testified about surveillance footage which depicted the three escaped inmates at a local Sonic on March 2, 2018. B.J. Blanchard, a crew chief in the aircraft division of the Texas Department of Public Safety ("TDPS"), testified that he provided aircraft assistance to the BCSO for an alleged escape on March 2, 2018. The surveillance footage from the aircraft, which is dated March 2, 2018, showed Arroyo's movements from the local Sonic to an automotive shop across the street and Arroyo's subsequent capture by TDPS state troopers. State troopers Jeremiah Garza and Jesse Perez of TDPS testified to pursuing and arresting Arroyo on March 2, 2018.
When viewed in the light most favorable to the verdict, the evidence is sufficient to establish that the offense of escape occurred on or about March 2, 2018 as alleged in the indictment. See Hooper, 214 S.W.3d at 13. Thus, no variance existed between the date alleged in the indictment and the evidence presented at trial. Having concluded that the evidence is sufficient to support the date of the offense, we overrule Arroyo's first issue.
III. ADMISSIBILITY OF EXTRANEOUS OFFENSE IN PUNISHMENT
Arroyo argues that the trial court abused its discretion by admitting evidence of an extraneous capital murder offense during the punishment phase of trial because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice pursuant to Texas Rule of Evidence 403. See TEX. R. EVID. 403.
Background
At the punishment phase of trial, the State sought to enhance Arroyo's punishment with five prior felony convictions. The State also sought to introduce evidence related to a charge of capital murder for the deaths of Rodney Spring and Quickether Jackson. Spring died as a result of a gunshot wound and Jackson died as a result of a combination of sharp force and gunshot wounds.
The trial court conducted a hearing out of the presence of the jury to determine whether the evidence of the extraneous capital murder offense would be "adequate to support a finding by the jury that the defendant committed the separate offense beyond a reasonable doubt." See TEX. CODE CRIM. PROC. ANN. art. 38.37 § 2-a(1). After finding that the State met the threshold showing, the trial court permitted the State to present evidence of the extraneous capital murder offense to the jury at the punishment phase of trial.
STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court's decision to admit evidence of an extraneous offense during the punishment phase of trial for an abuse of discretion. See Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002). We will affirm if the trial court's decision is within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
Article 37.07 of the Texas Code of Criminal Procedure provides that, during the punishment phase of trial,
evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). The admissibility of evidence during the punishment phase of a non-capital trial "is a matter of policy, including the policy of giving complete information to the jury to allow it to tailor an appropriate sentence for the defendant." Mata v. State, 226 S.W.3d 425, 432 (Tex. Crim. App. 2007). Thus, evidence that is "relevant to sentencing" is simply evidence that "is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case." Sims v. State, 273 S.W.3d 291, 295 (Tex. Crim. App. 2008) (quoting Ellison v. State, 201 S.W.3d 714, 719 (Tex. Crim. App. 2006)).
Texas Rule of Evidence 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. Under this rule, "it is presumed that the probative value of relevant evidence exceeds any danger of unfair prejudice." Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009). It is therefore "the objecting party's burden to show that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice." Tucker v. State, 456 S.W.3d 194, 207 (Tex. App.—San Antonio 2014, pet. ref'd). Rule 403 "envisions exclusion of evidence only when there is a 'clear disparity between the degree of prejudice of the offered evidence and its probative value.'" Hammer, 296 S.W.3d at 568 (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)).
When conducting a rule 403 analysis, courts balance "the following factors: (1) the probative value of the evidence; (2) the potential 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, 489 (Tex. Crim. App. 2004). "When the trial court exercises its discretion not to exclude the evidence by finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, we give deference to this decision." Tucker, 456 S.W.3d at 206 (citing Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003)). "Therefore, in determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, we do not conduct a de novo review and we 'should reverse the judgment of the trial court rarely and only after clear abuse of discretion.'" Id. (quoting Moses, 105 S.W.3d at 627).
DISCUSSION
During the punishment phase of trial, the State introduced evidence related to a capital murder offense allegedly committed by Arroyo. According to Arroyo, the capital murder offense was tried prior to the escape trial. Arroyo argues evidence of the extraneous capital murder offense had no probative value because the trial for the capital murder offense had resulted in a mistrial. However, article 37.07 of the Texas Code of Criminal Procedure permits the introduction of evidence of an extraneous crime or bad act in the punishment phase of trial "regardless of whether [the defendant] has been previously charged with or finally convicted of the crime or act." TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). Contrary to Arroyo's assertion, the evidence was probative because a defendant's criminal history and pattern of conduct are relevant factors for a jury to consider when tailoring a sentence to a particular defendant. Cf. Fowler v. State, 126 S.W.3d 307, 311 (Tex. App.—Beaumont 2004, no pet.) ("Evidence of defendant's prior assaults certainly had a tendency to cause a jury to increase his punishment. But that was its legitimate purpose. The value of the extraneous offense evidence was in permitting the jury to tailor the sentence to the defendant."). Thus, the first factor weighs in favor of admissibility.
In addition, Arroyo refers to the outcome of the murder retrial in support of his argument. The retrial occurred subsequent to the escape trial and is, thus, outside the appellate record. See Griffith v. State, 507 S.W.3d 720, 728 (Tex. Crim. App. 2016) ("An appellant may not go outside the appellate record in making his arguments for relief on appeal."); see also Sabine Offshore Serv. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979) (per curiam) (holding an appellate court may not consider matters outside the appellate record).
With regard to the second factor, Arroyo argues that testimony of the "brutal and savage murder" and the "admission of photos of the victims with multiple gunshot and knife wounds" influenced the jury in an irrational, yet indelible, way. However, testimony about the murder and photographs of the victim's injuries "depict nothing more than the reality of the brutal crime committed." See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) ("[W]hen the power of the visible evidence emanates from nothing more than what the defendant has himself done we cannot hold that the trial court has abused its discretion merely because it admitted the evidence."). The mere fact that a brutal crime was committed "will not render the probative value of the [evidence] substantially outweighed by any prejudicial effect." See Long v. State, 823 S.W.2d 259, 273 (Tex. Crim. App. 1991). "[A]lthough the effect of the evidence on the jury may have been indelible, it was not irrational, given that the legislature has expressly permitted evidence of unadjudicated extraneous crimes and bad acts to allow juries to tailor appropriate punishments." Sanders v. State, 422 S.W.3d 809, 815 (Tex. App.—Fort Worth 2014, pet. ref'd). This factor weighs in favor of admissibility.
The time needed to develop the evidence related to the extraneous capital murder offense amounted to approximately seventy-five pages out of the 233 pages of testimony offered during the punishment phase of trial or about thirty percent. This factor weighs in favor of exclusion. See Newton v. State, 301 S.W.3d 315, 321 (Tex. App.—Waco 2009, pet. ref'd) (finding factor weighed in favor of exclusion where extraneous-offense evidence amounted to about twenty-seven percent of testimony).
Finally, Arroyo argues there was no need for the extraneous-offense evidence because the State also introduced five prior felony convictions during punishment. However, "a jury is entitled to have before it 'all possible relevant information about the individual defendant whose fate it must determine.'" Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim. App. 2006) (quoting Sells v. State, 121 S.W.3d 748, 766 (Tex. Crim. App. 2003)). Thus, the evidence related to the extraneous capital murder offense permitted the jury to fashion an appropriate sentence for Arroyo under the particular circumstances of his case. See Sims, 273 S.W.3d at 295.
In sum, only one factor weighed against admitting the extraneous-offense evidence. In light of the directive that rule 403 "envisions exclusion of evidence only when there is a clear disparity between the degree of prejudice of the offered evidence and its probative value," the trial court could have reasonably concluded that the probative value of the evidence related to the extraneous capital murder offense was not substantially outweighed by the danger of unfair prejudice. See Hammer, 296 S.W.3d at 568 (internal quotations omitted). Thus, we cannot conclude that the trial court abused its discretion by admitting the evidence.
Arroyo also argues the common law doctrine of collateral estoppel barred admission of the extraneous-offense evidence. This issue was raised for the first time in a supplemental response brief. The Texas Rules of Appellate Procedure "require[] that an appellant designate all issues for review in [his] original brief." Garrett v. State, 220 S.W.3d 926, 928 (Tex. Crim. App. 2007); see also Rochelle v. State, 791 S.W.2d 121, 124 (Tex. Crim. App. 1990) ("The idea that a party may force a new issue on an appellate court after briefs have been filed is foreign to the rules . . . ."); Randle v. State, 878 S.W.2d 318, 319 (Tex. App.—Houston [1st Dist.] 1994, no writ) ("All points of error that an appellant wishes to rely upon and all responses thereto are to be submitted in the original briefs." (citing Rochelle, 791 S.W.2d at 124)). Additionally, Arroyo failed to present this specific complaint to the trial court. See TEX. R. APP. P. 33.1(a)(1). Consequently, we conclude Arroyo has failed to preserve this issue for our review.
IV. REMAINING ISSUES
In his third issue, Arroyo argues the State's closing argument in the punishment phase of trial violated his due-process rights and constituted prosecutorial misconduct. In his fourth issue, Arroyo argues the State engaged in prosecutorial vindictiveness. Arroyo failed to present these complaints to the trial court. See TEX. R. APP. P. 33.1(a)(1). Accordingly, Arroyo has failed to preserve these issues for our review. See id.; Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004) ("Because appellant failed to object to the jury argument, he has forfeited his right to raise the issue on appeal."); see also Neal v. State, 150 S.W.3d 169, 180 (Tex. Crim. App. 2004) ("Because appellant never presented his prosecutorial vindictiveness claim in the trial court, he failed to preserve this issue for appellate review.").
CONCLUSION
The trial court's judgment is affirmed.
Rebeca C. Martinez, Justice DO NOT PUBLISH