Opinion
07-22-00110-CR
01-31-2023
RONNIE LEE BREZINA, APPELLANT v. THE STATE OF TEXAS, APPELLEE
Do not publish
On Appeal from the 271st District Court Jack County, Texas Trial Court No. CR21305, Honorable Brock Smith, Presiding
Before QUINN, C.J., and PARKER and DOSS, JJ.
MEMORANDUM OPINION
Brian Quinn Chief Justice
Appellant, Ronnie Lee Brezina, appeals his conviction for capital murder and ensuing life prison sentence. He asserts seven issues. We affirm.
Pursuant to the Texas Supreme Court's docket equalization efforts, this case was transferred to this Court from the Second Court of Appeals. TEX. GOV'T CODE ANN. § 73.001. Therefore, we will decide this case "in accordance with the precedent of the transferor court" if our decision otherwise would have been inconsistent with the precedent of the transferor court. TEX. R. APP. P. 41.3.
Facts Gleaned from the Appellate Record
Appellant and the decedent, Brandy Ann Wallen, dated for several months prior to her death. The two met online and the relationship advanced quickly, leading to the couple purchasing a home together. Eventually, Brandy and appellant broke up, and appellant began harassing her in an attempt to reconcile. After a period of time, appellant appeared to back off but was still tracking Brandy using a GPS device. It was through this that he apparently followed Brandy's Tahoe to a tanning shop in Decatur.
Brandy entered the shop and exited within ten minutes. Within that short time period, appellant had entered Brandy's Tahoe and slipped into the back seat. Once Brandy departed the shop, an employee, Courtney, began cleaning the room Brandy utilized. While doing so, she heard a horn blow in the parking lot. Looking outside, Courtney saw Brandy in a Tahoe with its door ajar and dome light on. Brandy sat in the front driver's seat but turned to the back seat where sat appellant. Courtney had returned to her cleaning duties when she heard Brandy enter the front door and scream for help.
Brandy ran into tanning room 8 and shut the door, as appellant pursued her. In his effort, he pushed Courtney aside, entered the tanning room, shut the door, and straddled Brandy, who lay on the floor attempting to extricate herself from him. As he sat atop her, appellant repeatedly struck his ex-girlfriend with a "long and brown" object and uttered words revealing his intent to kill her. Courtney witnessed no blood as either Brandy or appellant ran through the shop into room 8. However, once he finished and departed, she saw a large amount of blood within the room. In short order, Brandy died from the injuries being inflicted upon her by appellant, which included being stabbed through the heart.
Other evidence illustrated that after appellant ran from the shop, he entered Brandy's Tahoe and drove it away. Police began their pursuit of him. And, his flight ended with him striking a tree.
Eventually, the trial court convened a jury trial after sua sponte transferring venue of the trial from Wise County to Jack County. The State had charged appellant with murdering Brandy while in the course of kidnapping or attempting to kidnap her, i.e., capital murder. The jury convicted him of that crime.
Issue One-Sufficiency of the Evidence
Via his first issue, appellant contends the evidence was insufficient to establish he committed murder in the course of kidnapping Brandy. That is, the State allegedly failed to prove he kidnapped or attempted to kidnap her during the murder. We overrule the issue.
The applicable standard of review is that discussed in Metcalf v. State, 597 S.W.3d 847, 855-56 (Tex. Crim. App. 2020). We apply it here. We further note that direct and circumstantial evidence is equally probative, while circumstantial evidence alone may be sufficient to prove guilt if its cumulative force is enough to support the conviction. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
Next, per section 19.03(a)(2) of the Penal Code, one commits capital murder by intentionally committing murder in the course of committing or attempting to commit kidnapping, among other specified offenses. TEX. PENAL CODE ANN. § 19.03(a)(2). Furthermore, "in the course of committing" is defined as conduct occurring during an attempt to commit, during the commission of, or in immediate flight from, the forbidden behavior. Griffin v. State, 491 S.W.3d 771, 774-75 (Tex. Crim. App. 2016).
As for kidnapping, one commits it if he intentionally or knowingly abducts another person. TEX. PENAL CODE ANN. § 20.03(a). To "abduct" means to restrain a person with intent to prevent the individual's liberation by, among other ways, using or threatening to use deadly force. Id. § 20.01(2). In turn, "'restrain' means to restrict a person's movements without consent, so as to substantially interfere with the person's liberty, by moving the person from one place to another or by confining the individual. Id. at § 20.01(1). A kidnapping becomes a completed offense when a restraint is accomplished with the specific intent to prevent liberation via the methods mentioned above. Griffin, 491 S.W.3d at 775.
With the foregoing in mind, we turn to the appellate record. It contains evidence of 1) Brandy screaming as she ran into the tanning shop, 2) appellant in hot pursuit of her, 3) appellant pushing Courtney aside to gain entry into the room in which Brandy fled, 4) appellant shutting the room's door thereby impeding Brandy's departure, 5) appellant straddling Brandy who lay on the floor, again impeding her escape, 6) appellant striking Brandy with an object while atop her and continuing to impede her escape, 7) the object appellant used being sufficient to pierce Brandy's heart, 8) Brandy telling appellant he was killing her and appellant responding "I know," and 9) Brandy fatally succumbing to the physical wounds left by the deadly weapon with which he struck her. See TEX. PENAL CODE ANN. § 1.07(a)(17)(B) (defining deadly weapon as including "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury"). That evidence permits a reasonable factfinder to rationally infer, beyond reasonable doubt, appellant's commission of capital murder. That is, his acknowledging that he was killing her in response to her pleas and her dying from his blows proved murder. And, as he committed that crime, he restricted Brandy's liberty when confining her to the room by closing its door, sitting atop her, and exercising deadly force. See TEX. PENAL CODE ANN. § 9.01(3) (defining deadly force as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury"). That she struggled against him during the episode evinces her lack of consent to all his actions. Thus, while murdering Brandy, his actions also satisfied the elements of kidnapping. Appellant's reliance on Griffin to suggest otherwise is misplaced.
Griffin dealt with an assault on a third party after the individual witnessed a murder. His intent, according to the court, was not to confine or hide the third party but remove him as a witness. Griffin, 491 S.W.3d at 775. Here, the murder and kidnapping victim was one and the same. Additionally, appellant confined Brandy into a room and restricted her escape which afforded him opportunity to also commit murder.
Issues Two, Three, and Four-Admission of Extraneous Offense Evidence
Through issues two, three, and four, appellant complains of evidence that referenced appellant's parole status and argues the trial court erred in denying his motion for mistrial. The evidence consisted of an exhibit containing an interview with appellant. The State mistakenly played to the jury an unredacted version of the interview which referenced appellant's parole status. In attempting to address that mistake, the trial court instructed the jury to disregard the last thirty seconds of the exhibit, which encompassed the matter and denied appellant's motion for mistrial. Appellant believes these circumstances warrant reversal. We overrule the issue.
A mistrial is appropriate only for a narrow class of highly prejudicial and incurable errors. Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007); Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004). Furthermore, a prompt instruction to disregard ordinarily cures error associated with the admission of evidence, including evidence of extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000); Gardner v. State, No. 07-16-00458-CR, 2018 Tex.App. LEXIS 7765, at *5 (Tex. App.- Amarillo Sept. 24, 2018, pet. ref'd) (mem. op., not designated for publication).
Here, the State admitted its mistake in playing the unredacted exhibit. Yet, the latter was not the exhibit admitted into evidence. Moreover, an instruction to disregard the questionable evidence immediately followed, as did a similar instruction in the jury charge. We presume jurors follow curative instructions. Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009). And, again, purported error of the ilk at bar are normally subject to cure via an instruction. See, e.g., Kemp v. State, 846 S.W.2d 289, 308 (Tex. Crim. App. 1992) (witness's reference to the defendant as having "recently been released from the penitentiary" cured by instruction to disregard); Nobles v. State, 843 S.W.2d 503, 514 (Tex. Crim. App. 1992) (witness's remark that defendant "didn't want to go back to prison" was cured by prompt instruction to disregard); see also Nelson v. State, No. 02-16-00184-CR, 2017 Tex.App. LEXIS 7884, at *19-21 (Tex. App.-Fort Worth Aug. 17, 2017, no pet.) (mem. op., not designated for publication) (finding trial court's prompt instruction to disregard cured any prejudice resulting from witness's reference to the defendant's time in prison). We add that the references to appellant's parole status occurred early in the exhibit, were brief, and were not emphasized or repeated. The totality of these indicia lead us to conclude the harm of which appellant complained was cured by the instruction.
Issue Five-Admission of Hearsay
By his fifth issue, appellant asserts the trial court abused its discretion in admitting "rank hearsay." It allegedly consisted of Courtney's statements captured on a police body camera. Through the exhibit, the officer recorded Courtney's statement about hearing Brandy twice say "you're killing me" and appellant responding "I know I know." The court admitted the evidence as an excited utterance exception to the hearsay rule. Appellant argues it erred. We overrule the issue.
An excited utterance, one of the recognized exceptions to the hearsay rule, occurs when "[a] statement relating to a startling event or condition [is] made while the declarant was under the stress of excitement that it caused." Cisneros v. State, No. 07-18-00260-CR, 2019 Tex.App. LEXIS 10424, at *6 (Tex. App.-Amarillo Dec. 2, 2019, no pet.) (mem. op., not designated for publication). In determining whether a statement is one, courts must determine whether the person making the statement was "still dominated by the emotions, excitement, fear, or pain of the event or condition" at the time of the utterance. Apolinar v. State, 155 S.W.3d 184, 186-87 (Tex. Crim. App. 2005). Factors considered include the length of time between the occurrence and the statement, the nature of the declarant, whether the statement was made in response to a question, and whether the statement is self-serving. Id. at 187.
The record shows Courtney witnessed a very brutal event. She was very shaken when calling her manager and remained so when the latter arrived at the shop. So too was Courtney "upset and excited" when officers arrived. Furthermore, the officer who recorded Courtney's statement did so by virtue of being nearby as Courtney spoke to three other people unassociated with law enforcement. None of her statements were made in response to police questioning. Though uttered about twenty minutes after the officer received the dispatch call, Courtney can be seen on the video crying and her voice quivering and halting as she iterated the events to the three bystanders. Given these indicia, we cannot say the trial court's decision to admit the evidence as an excited utterance fell outside the zone of reasonable disagreement. McCarty v. State, 257 S.W.3d 238, 240 (Tex. Crim. App. 2008) (describing the standard of review as abused discretion and such discretion being abused when the decision falls outside the zone of reasonable disagreement).
Issue Six-Failure to Include Jury Instruction Concerning Self-Defense
In issue six, appellant argues the trial court erred when it failed to include in its charge an application paragraph on self-defense. An abstract instruction on the matter was included, however. Despite the omission, appellant failed to object. We overrule the issue.
The record contained evidence suggesting that Brandy may have stabbed appellant with a knife while the two were in the Tahoe.
An application paragraph normally accompanies the abstract portion of a charge. Through it, the trial court applies the specific charges alleged against the facts of the case. Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012). Furthermore, when inclusion of a charge on self-defense is warranted by the evidence, the failure to accompany the abstract instruction with one applying it to the facts of the case is error. Barrera v. State, 982 S.W.2d 415, 416 (Tex. Crim. App. 1998). See also Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013). Yet, that error is not automatically reversible, given the condition that the defendant suffer harm, or in this case, egregious harm.
Appellant did not object to the charge, which failure obligates us to review the error for egregious harm. Warner v. State, 245 S.W.3d 458, 461-62 (Tex. Crim. App. 2008).
Here, the trial court erred in omitting an application paragraph in question. But, again, the charge included an abstract instruction on self-defense. The record also illustrates that though appellant advanced the defensive theory at trial, the effort came with little emphasis during the closing arguments.
Of additional note is other evidence revealing that Brandy's supposed attack upon appellant in the Tahoe had ended by the time he pursued her into the tanning salon. Elemental to self-defense is the condition that the actor reasonably believe force was immediately necessary to protect himself against the other's use of unlawful force. TEX. PENAL CODE ANN. §§ 9.31(a), 9.32. (a)(2)(A). We cannot say that element could never be found in situations where a defendant had to chase down one who had already ceased her attack. Yet, those circumstances could certainly render suspect the argument that appellant reasonably thought force was necessary to protect himself against Brandy as she fled and no longer posed a threat.
Nor can we ignore appellant's absence of citation to evidence indicating he admitted to assaulting Brandy. Our review of the record uncovered comments like he "tried to stab her" in the Tahoe but she escaped, he did not "know if they were wrestling around or what" in the tanning room, and "all [was] a blur." (Emphasis added). Each intimate's equivocation rather than admission, which tends to dilute the purpose of a confession-and-avoidance type defense. As said in Jordan v. State, "[s]elf-defense is a confession-and-avoidance defense requiring the defendant to admit to his otherwise illegal conduct . . . [h]e cannot both invoke self-defense and flatly deny the charged conduct." Jordan v. State, 593 S.W.3d 340, 343 (Tex. Crim. App. 2020). Appellant may not have "flatly denied" murdering Brandy, but he certainly did not admit it either. That too weighs in the egregious harm analysis. And, considered together, the circumstances lead us to conclude that appellant did not suffer egregious harm from the omission in question. Thus, the error is not reversible.
Issue Seven-Venue
Via his final issue, appellant contends the trial court abused its discretion by transferring venue to another county on its own motion. We overrule the issue.
Article 31.01 governs the transfer of venue on the trial court's own motion. It provides:
Whenever in any case of felony or misdemeanor punishable by confinement, the judge presiding shall be satisfied that a trial, alike fair and impartial to the accused and to the State, cannot, from any cause, be had in the county in which the case is pending, he may, upon his own motion, after due notice to accused and the State, and after hearing evidence thereon, order a change of venue to any county in the judicial district in which such county is located or in an adjoining district, stating in his order the grounds for such change of venue ....
TEX. CODE CRIM. PROC. ANN. art. 31.01 (emphasis added). And, while the decision is reviewable under the standard of abused discretion, where the trial court has the right to satisfy itself "from any cause, it is difficult to envisage a state of facts by which [it] . . . would be warranted in finding that an abuse of discretion has occurred." Spriggs v. State, 289 S.W.2d 272, 273 (Tex. Crim. App. 1956) (emphasis added); see also Brimage v. State, 918 S.W.2d 466, 508 (Tex. Crim. App. 1996) (reaffirming the caveat). We also observe that "a court's decision regarding change of venue will not be considered an abuse of discretion when there is conflicting evidence on that issue." Cook v. State, 667 S.W.2d 520, 522 (Tex. Crim. App. 1984); accord Bennett v. State, No. 03-21-00225-CR, 2022 Tex.App. LEXIS 8468, at *29 (Tex. App.-Austin Nov. 17, 2022, no pet.) (mem. op., not designated for publication) (the same).
Here, the trial court transferred venue from Wise County to Jack County upon hearing evidence. That evidence included testimony from a witness who 1) said that neither the State nor appellant could obtain a fair trial in Wise County, 2) discussed the notoriety of the case and the victim's status as a known personage within the community, 3) discussed how the ability to impanel a jury in Wise County was adversely affected by the Covid-19 pandemic, 4) opined that it would be easier to empanel a jury in Jack County, and 5) revealed how a prior attempt to empanel a jury to try appellant proved unsuccessful. Upon hearing the evidence, the trial court transferred venue to Jack County because, among other reasons, 1) the pretrial publicity surrounding the case, 2) the nature and severity of the alleged facts involved, 3) the increasingly smaller number of persons appearing in Wise County for jury selection due to the Covid-19 conditions, and 4) the anticipated length of trial and the size of the jury venire needed given the spread of Covid.
Trial courts may transfer venue under article 31.01 for reasons unrelated to mere pretrial publicity if those reasons impede the ability to conduct a fair trial. See, e.g., Bath v. State, 951 S.W.2d 11,21-22 (Tex. App.-Corpus Christi 1997, pet. ref'd) (discussing a myriad of factors unrelated to publicity which justified transfers). As said by the prosecutor at the venue hearing, "if you can't have a trial here, you can't have a fair trial here." Though Texas proceeds forth from the Covid pandemic, the latter's impact cannot be denied. Its hampering the ability to successfully empanel a jury is a legitimate indicia to factor into the equation of assuring the litigants a fair trial. The same is true of the pretrial publicity surrounding the murder and the community's familiarity with Brandy. Given that a "change of venue will not be considered an abuse of discretion when there is conflicting evidence on that issue," Cook, supra, the conflicting evidence provided the trial court, and its findings derived from that evidence, we cannot say it abused its discretion in transferring venue. This is especially so when appellant, through his trial attorney, expressly "approved" the order mandating that transfer.
Having overruled each issue, we affirm the judgment of the trial court.