Opinion
No. 01-10-00394-CR
Opinion issued June 30, 2011. DO NOT PUBLISH. TEX. R. APP. P. 47.2(b).
On Appeal from the 263rd District Court Harris County, Texas, Trial Court Case No. 1180719.
MEMORANDUM OPINION
The jury found appellant, Cruz Crisoforo Chavez, guilty of the offense of murder. The jury assessed punishment at 25 years in prison. Appellant challenges the judgment of conviction in three issues. We affirm.
See TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2003).
Background
A grand jury indicted appellant for the murder of the complainant, Jose Lopez. The indictment alleged that appellant had caused the complainant's death by stabbing him with a knife. More particularly, it alleged that appellant either (1) had intentionally and knowingly caused the complainant's death or (2) had intended to cause serious bodily injury to the complainant and had caused his death by knowingly committing an act clearly dangerous to human life, namely, stabbing the complainant with a knife. At trial, the State and the defense presented different versions of the events surrounding the complainant's death. The State presented evidence showing that appellant had intentionally stabbed the complainant because the complainant owed appellant's wife money. The defense presented evidence that appellant was not the person who stabbed the complainant. The State's evidence showed that Jose Alvarado, the complainant's roommate and appellant's friend, saw appellant and the complainant fighting in a common area of the apartment complex where all three men lived. Alvarado heard appellant tell the complainant that he wanted to kill him. Alvarado saw the complainant backing away from appellant with his hands in the air, and saw appellant advancing toward the complainant. Alvarado also saw that appellant had a large kitchen knife in his hand. When Alvarado intervened, appellant warned him to stay out of it. Appellant threatened to stab Alvarado and swiped at him with the knife. Alvarado then ran behind a car that was about 10 feet away. Appellant pursued the complainant, who continued to hold his hands up in the air. The complainant was leaning against a car when appellant stabbed him. Appellant then ran to his nearby apartment. Maria Mediata was also a witness at the scene. While she was driving through the apartment complex parking lot, Mediata and Alvarado, who was a passenger in her car, noticed appellant and the complainant struggling with each other. Mediata stopped the car to let Alvarado out to allow him to intervene in the altercation. Mediata testified that she heard appellant yelling "bad words" at the complainant. She saw that appellant was holding onto the complainant, who was trying to pull away from appellant. After parking her car, Mediata returned to the scene and saw that the complainant was injured and bleeding. Mediata also saw appellant running from the scene carrying a knife. Mediata heard appellant cussing. She also heard him say that no one should try to get close to him or "they also would be fucked up." Mediata and Alvarado attempted to aid the complainant, who was bleeding profusely from a stab wound in his side. The complainant told Mediata that appellant was upset because the complainant owed appellant's wife $100 for lunches that she had prepared for the complainant. The complainant was taken to the hospital where he died the next morning. Police recovered a knife from the front seat of appellant's truck and another knife from the kitchen sink of appellant's apartment. Appellant voluntarily surrendered to the police several days later. At trial, an assistant medical examiner testified that the complainant's cause of death was a five and one-half-inch stab wound to his torso. The medical examiner testified that the stabbing had also fractured appellant's rib, indicating that significant force had been used to make the wound. Appellant testified in his own defense at trial. He provided a different version of the events from that provided by Alvarado and Mediata. Appellant testified that on the night in question, he was working on his car using a small knife to strip the battery cable. He stated that the complainant approached him from behind and threatened him with a knife. At first, appellant did not realize that it was the complainant; rather, he thought that it was a stranger attempting to rob him. Appellant stated that he had never had any problem with the complainant in the past. Appellant testified that the complainant did not owe appellant's wife money. Appellant testified that the complainant lunged at him with the knife a couple of times. According to appellant, the complainant cut himself on the arm with his own knife. Appellant testified that he feared for his life. Appellant testified that Jose Alvarado and Maria Mediata arrived at the scene in a truck with another man. They told appellant that they were trying to stop the altercation. Appellant stated that "they took [the complainant]" with them in the truck. Appellant testified that he did not stab the complainant. The jury found appellant guilty of the offense of murder and assessed punishment at 25 years in prison. Appellant now appeals the judgment of conviction in three issues.Spousal Privilege
In his first issue, appellant contends it was error for the trial court to permit the State to call his wife to the stand and to require that she invoke her spousal privilege in the jury's presence.A. Relevant Portions of the Record
Before the State called Maria Acosta as a witness, defense counsel requested the trial court to conduct an "in camera hearing" to permit Acosta to assert her spousal privilege not to testify against appellant and to allow the parties to question Acosta regarding issues related to her assertion of that privilege. The trial court denied the request. The trial court informed the parties that the State could call Acosta as a witness, and, if she asserted her spousal privilege, then the trial court would conduct a hearing outside the presence of the jury to allow the parties to ask questions pertinent to the privilege. When questioned by the State, Acosta acknowledged that she had told an investigating police officer that she was not married to appellant. When asked whether she currently claimed that appellant is her husband, Acosta responded, "In my heart, he is my husband." The State then asked whether Acosta knew that if she claimed that appellant is her husband, she may not have to testify. Acosta stated, "I don't want to testify against him because I love him." The prosecutor clarified, "That's not my question. My question is have you been informed if you claim he's your husband, you don't have to testify about your knowledge of the events surrounding this case?" At that point, the defense made a relevancy objection, which the trial court overruled. Acosta then answered the question indicating that she had not been informed of the spousal privilege. The State proceeded to question Acosta regarding whether appellant had been drinking beer on the day of the offense. Acosta indicated that appellant had been drinking beer with his friends at the apartment complex. After Acosta had answered 15 questions on this topic, defense objected, stated that Acosta had claimed the spousal privilege and requested that the questioning stop. The trial court stopped the questioning and conducted a hearing outside the presence of the jury. Defense counsel conducted a voir dire examination of Acosta to establish that she was appellant's common law wife. Counsel elicited testimony from Acosta in which she indicated that she was asserting her spousal privilege. The trial court noted on the record that Acosta had asserted the privilege. At that point, Acosta left the witness stand. The jury was brought in and the State rested. No mention was made to the jury regarding Acosta's departure from the witness stand.B. Pertinent Legal Principles
Rule of Evidence 504(b)(1) provides that the spouse of an accused has a privilege not to be called as a witness for the State. TEX. R. EVID. 504(b)(1). This is not an absolute privilege; it must be invoked by the defendant's spouse. See id.; Benitez v. State, 5 S.W.3d 915, 918 (Tex. App.-Amarillo 1999, pet ref'd); see also Johnson v. State, 803 S.W.2d 272, 281 (Tex. Crim. App. 1990), overruled on other grounds, Heitman v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991). Claims of privilege generally should be made without the jury's knowledge. See TEX. R. EVID. 513(b). The spouse's invocation of privilege in front of the jury, without more, almost necessarily compels the jury to draw an inference adverse to the defendant. Johnson, 803 S.W.2d at 282; see also Benitez, 5 S.W.3d at 920. However, it is not automatic error if the jury divines what occurred. Benitez, 5 S.W.3d at 919. One court has held, "[I]t is the jury's perception of the situation, coupled with the knowledge by the prosecutor that the claim would likely be invoked, which creates the error." Id. Any error by the trial court in allowing the State to call appellant's spouse as a witness and force the invocation of privilege in front of the jury is subject to a harm analysis. See Johnson, 803 S.W.2d at 283 (conducting harm analysis under former Rule of Appellate Procedure 81(b)(2)). Because such error does not implicate the constitutional rights of an appellant, we apply Rule of Appellate Procedure 44.2(b) to determine whether the error affected the appellant's substantial rights. See TEX. R. APP. P. 44.2(b). A substantial right is affected when the error has a substantial and injurious effect or influence in determining the jury's verdict. See King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). A substantial right is not affected "if the appellate court, after examining the record as a whole, has fair assurance that the error did not influence the jury, or had but a slight effect." Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); see Casey v. State, 215 S.W.3d 870, 885 (Tex. Crim. App. 2007). Stated differently, if we have "a grave doubt" that the result was free from the substantial influence of the error, we must treat the error accordingly. Burnett v. State, 88 S.W.3d 633, 637-38 (Tex. Crim. App. 2002). "Grave doubt" means that "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." Id. In assessing the likelihood that a jury's decision was adversely affected by the errors, we consider everything in the record, including any testimony or physical evidence admitted, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence. Motilla, 78 S.W.3d at 355. We may also consider statements made during voir dire, jury instructions, the State's theory, any defensive theories, closing argument, and whether the State emphasized the errors. Id. at 355-56.B. Harm Analysis
On appeal, appellant complains of the trial court's overruling of his request to conduct a hearing outside the presence of the jury regarding spousal privilege, and the trial court's requiring Acosta to assert her privilege in front of the jury. Appellant contends that the trial court's actions likely resulted in the jury making an adverse inference against him, namely, an inference that Acosta's testimony would have been detrimental to him. Even if we assume that the trial court erred as asserted by appellant, we conclude that the error was harmless because it did not affect appellant's substantial rights. See TEX. R. APP. P. 44.2(b). After examining the record of appellant's trial as a whole, we have fair assurance that the error did not have a substantial and injurious effect or influence in determining the jury's verdict. First, Alvarado and Mediata each provided detailed eyewitness testimony that supported the jury's guilty finding. Their testimony placed appellant at the scene with a large knife in his hand, the size of that which the assistant medical examiner testified was used to kill the complainant. Alvarado and Mediata also testified that appellant was the aggressor in the altercation with the complainant, and they heard appellant make threatening and incriminating statements at the scene. Although Alvarado testified that he could not see the exact location on the complainant's body where appellant stabbed the complainant, Alvarado responded affirmatively when asked whether he saw appellant "using the knife to stab [the complainant]." Appellant denied being the aggressor, and denied stabbing the complainant, but admitted that he and the complainant had engaged in a physical altercation on the night in question. Appellant also admitted to possessing a knife during the altercation, albeit a small knife. When they were called to the scene on the night of the complainant's death, the police recovered a butcher knife with a seven inch blade from the kitchen sink of appellant's apartment. The knife tested negative for blood, but both Alvarado and Mediata testified that it looked similar to the knife that appellant wielded when attacking the complainant. The assistant medical examiner testified that the knife recovered was consistent with the type of knife that inflicted the complainant's fatal wound. Moreover, the jury heard Acosta state that she did not want to testify against appellant because she loved him. The jury did not hear Acosta specifically say that she was asserting her spousal privilege not to testify. Defense counsel mentioned the privilege in front of the jury when he objected. At that point, the jury had already heard Acosta provide testimony detrimental to appellant, namely, that appellant had been drinking beer on the night of the offense. No evidence was presented by either side that Acosta was present at the scene of the stabbing or otherwise had direct knowledge of the offense. In addition, the State did not draw attention to either Acosta's assertion of the privilege or the fact that the defense did not call Acosta as a witness. Cf. TEX. R. EVID. 504(b)(2) ("Failure by an accused to call the accused's spouse as a witness, where other evidence indicates that the spouse could testify to relevant matters, is a proper subject of comment by counsel."). In conclusion, after examining the record as a whole, we have fair assurance that the complained-of error did not have a substantial and injurious effect or influence in determining the jury's verdict, or had but a slight effect. Casey, 215 S.W.3d at 885. Therefore, any error by the trial court in denying appellant's request to conduct a hearing regarding spousal privilege outside the presence of the jury and creating a situation in which the privilege would be asserted in front of the jury was harmless. We overrule appellant's first issue.Lesser-Included Offenses
In his second issue, appellant contends that the trial court erred when it denied his request for lesser-included offense instructions for the offenses of manslaughter and criminally negligent homicide.A. Legal Principles
We employ a two-part test to determine whether a trial court should have given a lesser-included offense instruction requested by the defendant. See Guzman v. State, 188 S.W.3d 185, 188 (Tex. Crim. App. 2006); Salinas v. State, 163 S.W.3d 734, 741 (Tex. Crim. App. 2005). In the first part, we determine whether an offense is a lesser-included offense of the alleged offense. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007); Salinas, 163 S.W.3d at 741. The lesser-included offense must be included within the proof necessary to establish the offense charged. See Rousseau v. State, 855 S.W.2d 666, 672-75 (Tex. Crim. App. 1993). The second step is to determine if there is some evidence that would permit a rational jury to find that the defendant is guilty of the lesser offense but not guilty of the greater. Hall, 225 S.W.3d at 536; Salinas, 163 S.W.3d at 741. Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a charge on the lesser offense. Hall, 225 S.W.3d at 536. "[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted." Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003). We review all evidence presented at trial to make this determination. Rousseau, 855 S.W.2d at 673. If the evidence raises the issue of a lesser-included offense, a jury charge must be given based on that evidence, "whether produced by the State or the defendant and whether it be strong, weak, unimpeached, or contradicted." Id. at 672 (quoting Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985)).B. Analysis
The State does not contest that, as charged in this case, manslaughter and criminally negligent homicide are lesser included offenses of murder. See Cardenas v. State, 30 S.W.3d 384, 392-93 (Tex. Crim. App. 2000) (noting that manslaughter and criminally negligent homicide are lesser included offenses of capital murder). Therefore, we must determine whether there is some evidence in the record that would permit the jury to find that if appellant is guilty, he is guilty only of manslaughter or criminally negligent homicide. In other words, there must be some evidence from which a jury could rationally acquit appellant of the greater offense of murder while convicting him of the lesser included offenses of manslaughter or criminally negligent homicide. See Mathis v. State, 67 S.W.3d 918, 925 (Tex. Crim. App. 2002). To make such a finding, the evidence must establish the lesser included offense as a valid rational alternative to the charged offense. Hall, 225 S.W.3d at 536. The essential difference between murder and either manslaughter or criminally negligent homicide is the culpable mental state required for each offense. See Ross v. State, 861 S.W.2d 870, 875 (Tex. Crim. App. 1992) (holding involuntary manslaughter lesser included offense of murder); Thomas v. State, 699 S.W.2d 845, 849 (Tex. Crim. App. 1985) (holding criminally negligent homicide lesser included offense of murder). A person is guilty of murder (1) if he intentionally or knowingly causes the death of an individual or (2) if he intended to cause serious bodily injury and commits an act clearly dangerous to human life. TEX. PENAL CODE ANN. § 19.02(b) (Vernon 2003). In contrast, manslaughter is defined as recklessly causing the death of an individual, id. § 19.04(a) (Vernon 2003), while criminally negligent homicide requires a person to cause the death of an individual by criminal negligence. Id. § 19.05(a) (Vernon 2003). Accordingly, appellant was entitled to an instruction on manslaughter if there is some evidence from which a rational jury could find that he only consciously disregarded the substantial and unjustifiable risk that his conduct would cause the complainant's death. Appellant was entitled to an instruction on criminally negligent homicide if there was some evidence from which a rational jury could find that he only should have been aware of a substantial and unjustifiable risk that the complainant's death would occur. To support his assertion that he was entitled to the lesser-included instructions, appellant cites the following argument he presented to the trial court:I would like the lesser included offense of both manslaughter and criminally negligent homicide to be included into the charge.
I have the standard, basically, boilerplate charge that we use for those two lesser options here in Harris County available for the court reporter or for the record.
Judge, I think there is evidence when we consider Maria Mediata talked about a struggle, at some point one of the combatants had a knife. There was talk or testimony from Jose Alvarado about close proximity and nobody has testified that they saw [appellant] intentionally or knowingly stab the decedent Jose Lopez with a knife. And, therefore, Judge, I think a Jury might find him not guilty of murder and should have the option of considering whether they want to find him guilty of manslaughter for causing manslaughter, basically, killing him without the intent to kill him or without even the intent to commit serious bodily injury by committing an act clearly dangerous to human life, the other possible way to convict him of murder.
I think the Jury might find him not guilty of both of those things and possibly manslaughter as sort of an accident in the struggle. And, again, Judge, I have a proposed charge to include on that.
By an extension of that argument, Judge, if they do not feel that whatever conduct out there, whatever careless contact out there might have actually constituted manslaughter, then they could have the option if they thought [appellant's] conduct rose to the level of criminal negligence.The culpable mental state for murder refers to the result of the conduct — a person's death — not to the nature of that conduct. See Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). As a result, there must be some affirmative evidence, from some source, that at the moment appellant stabbed the complainant, he did not intend his death or know that it was reasonably certain to occur. See Mays v. State, 318 S.W.3d 368, 387 (Tex. Crim. App. 2010); see also Hampton v. State, 109 S.W.3d 437, 441 (Tex. Crim. App. 2003) (holding that before one is entitled to an instruction on a lesser-included offense, there must be "affirmative" evidence "directly germane" to the existence of the lesser-included offense). The evidence appellant points to does not affirmatively show that he was either reckless or negligent about the likelihood that a death would occur at the moment he stabbed the complainant. In the trial court, appellant pointed to evidence that Alvarado and Mediata saw appellant and the complainant struggling. Appellant posited that the struggle led to an accidental stabbing. However, there is no affirmative evidence to support this theory. To the contrary, Alvarado and Mediata each testified that appellant was the aggressor and that the complainant was attempting to back away from appellant during the altercation. In addition, Alvarado testified that he heard appellant tell the complainant that he wanted to kill him. Appellant was wielding a large kitchen knife. When Alvarado tried to intercede, appellant swiped at him with the knife. Alvarado also testified that appellant pursued the complainant, who had his hands in the air. Thereafter, appellant stabbed the complainant. When he testified, appellant did not state that the stabbing was accidental. Instead, appellant denied stabbing or hurting the complainant altogether. Appellant stated that Alvarado and Mediata had taken the complainant, who was still alive, with them in a truck. We conclude that there is no evidence in the record showing that, if he is guilty, appellant is guilty only of the lesser-included offense of manslaughter or criminally negligent homicide. We hold that the trial court properly denied appellant's request for the lesser-included offense instructions. We overrule appellant's second issue.
Closing Argument
In his third issue, appellant contends that the trial court erred in overruling his objection to the State's argument. Proper jury argument falls within one of the following categories: (1) summation of the evidence, (2) reasonable deduction from the evidence, (3) response to argument of opposing counsel, and (4) plea for law enforcement. Davis v. State, 329 S.W.3d 798, 821 (Tex. Crim. App. 2010). Here, appellant complains of the State's closing argument contained in the following discourse:[Prosecutor:] [Defense counsel] also wants you to believe that the fact that those two witnesses [Alvarado and Mediata] and the defendant had the time [of the stabbing] around 10:00 o'clock means that there is something foul about their testimony. Well, there wasn't. Just means they were wrong about the time. You heard the testimony from the medical examiner. There is no way that [the complainant] would have survived two hours bleeding the way he was. You heard the doctor testify that without immediate medical attention he would have expired.
[Defense counsel:] Judge, that's a mischaracterization of the evidence. He actually lived 9 hours.
[Prosecutor:] Without medical attention, Your Honor.
The Court: Overruled.Contrary to appellant's contention, the foregoing argument by the State was proper. It was offered in response to the appellant's closing argument in which he assailed Alvarado's and Mediata's credibility. They had testified that the stabbing occurred around 10:30 p.m., but other evidence showed that the police had been called around midnight. When it made the complained-of remark, the State was highlighting that Alvarado and Mediata had simply been mistaken about the time of the stabbing. The complained-of statement by the prosecutor was also a reasonable deduction from the assistant medical examiner's testimony. The assistant medical examiner testified that a person who had sustained a knife wound, such as that sustained by the complainant, might die "in a matter of 10 minutes." The doctor stated that the rate of death depended on how many blood vessels were severed and whether there was immediate access to medical therapy. The record shows that the complainant received medical treatment following the stabbing. The assistant medical examiner also testified that the complainant had extensive blood loss and that his liver had been lacerated. Thus, when she made the statement, the prosecutor was reasonably deducing from the doctor's testimony that the complainant had received his medical treatment within two hours of being stabbed. Appellant also complains of another remark by the State made in response to an argument by the defense. The defense argued that appellant's post-incident conduct indicated that he did not kill the complainant. The defense pointed out that, after the incident, appellant did not flee to Mexico. The State responded that there might be other reasons that appellant did not flee, such as the fact that appellant's wife and child live in Houston and "How about the fact that he didn't have any money on him at that point? Didn't have any identification." Appellant objected on the ground that "the fact" that appellant did not have money or identification was not in evidence. The trial court overruled the objection. Appellant is correct that no evidence was offered regarding these facts. Nonetheless, even if we assume that it was error for the trial court to overrule the objection, any error was harmless. Improper-argument error is non-constitutional error. Brown v. State, 270 S.W.3d 564, 572 (Tex. Crim. App. 2008). Non-constitutional error that does not affect substantial rights must be disregarded. Id.; see TEX. R. APP. P. 44.2(b). To determine whether appellant's substantial rights were affected by improper argument, we balance the following factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect of the prosecutor's comment), (2) any curative measures taken (the effect of any cautionary instruction by the trial court), and (3) the certainty of conviction absent the misconduct (the strength of the evidence supporting the conviction). Mosely v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998). We first consider the severity of misconduct. The Court of Criminal Appeals has equated the "severity of the misconduct" with the prejudicial effect of the prosecutor's remarks. Id. When evaluating the severity of the misconduct, we must assess whether the jury argument is extreme or manifestly improper by examining the entire record of final argument to determine if there was a willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Brown, 270 S.W.3d at 573. The complained-of argument was made in conjunction with remarks that were supported by the evidence; that is, the State also argued that appellant had reason not to flee because his wife and child lived in Houston. These facts were supported by testimony admitted at trial. When read in context, the complained-of remarks appear to be inadvertent and innocuous. Moreover, the record reflects that the complained-of argument was only a small portion of the State's entire jury argument. The State instead emphasized the incredibility of appellant's testimony, the credibility of Alvarado's and Mediata's testimony, and the forensic evidence. After reviewing the State's closing argument as a whole, we conclude that there was no willful and calculated effort on the part of the State to deprive appellant of a fair and impartial trial. Nor can we conclude that appellant was prejudiced by the remark. Although there were no curative measures, such as an instruction to disregard, the objectionable statement was an isolated statement, and the prosecutor moved on after the objection and did not mention it again. Moreover, given the evidence as a whole, including the eye-witness testimony, the knife recovered from appellant's kitchen sink, and the forensic evidence, the certainty of the conviction was unaffected by the isolated remark by the State. The pertinent decision that the jury had to make in this case was whether to believe Alvarado and Mediata or whether to believe appellant. The complained-of comment by the prosecutor that appellant did not flee because he lacked money and identification had little, if any, bearing on the jury's credibility assessments. After reviewing the record as a whole, we conclude that appellant's substantial rights were not affected by the complained of error. See TEX. R. APP. P. 44.2(b). Therefore, assuming the trial court erred by overruling appellant's objection, we hold that the error was harmless. We overrule appellant's third issue.