Opinion
No. 14-04-00874-CR
Opinion filed November 8, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 208th District Court, Harris County, Texas, Trial Court Cause No. 946,635. Affirmed.
Panel consists of Chief Justice HEDGES and Justices YATES and ANDERSON.
MEMORANDUM OPINION
A jury convicted appellant, Ludwig Van Enriquez, for the murder of Karol Mena and assessed punishment for life in the Texas Department of Criminal Justice, Institutional Division. In a single issue, appellant contends he suffered egregious harm when the trial court failed to sua sponte instruct the jury at the punishment phase that before it could consider prior extraneous offenses in assessing punishment, the State must have proven those prior extraneous offenses beyond a reasonable doubt. Specifically, appellant objects to the jury's use of evidence of bruising on Mena's body to implicate appellant domestically abused Mena. We affirm.
FACTUAL BACKGROUND
On July 12, 2002, police were called to a shooting at the Pointe Royale Apartments. On arriving, they found Karol Mena with a gunshot wound to her head. Appellant was in the apartment with three small children. Police found two bullet holes in the bedroom window and one expended bullet in the wall, indicating Mena was shot through the window. Appellant went with police to the police station, where he voluntarily gave a witness statement. In his statement, he claimed to be feeding the children breakfast when he heard shots coming from the bedroom. He also told officers about two suspects he believed might have been responsible for Mena's death. Based on this evidence, appellant was not a suspect at the time. The autopsy results revealed the gunshot wound to Mena's head was a contact wound, meaning she was shot at close range with the barrel of the gun very close to, if not touching, her head when the shot was fired. This information cast doubt on appellant's story, since he claimed to be the only adult inside the apartment when the shots were fired. Police then investigated the apartment further. They performed trajectory tests from the two bullet holes in the window and found another bullet on the floor of the bedroom. They concluded three shots had been fired, two through the window and one directly into Mena's head. Based on this information, police obtained an arrest warrant for appellant. A second voluntary audio-taped statement was taken at police headquarters, and appellant again denied shooting Mena.PROCEDURAL HISTORY
Appellant plead not guilty to murder. During the guilt/innocence phase of the trial, the medical examiner, Dr. Harminder Narula, testified about the autopsy he performed on Mena. He testified about the gunshot wound to Mena's head and bruises found on her arms, hands, back, and thighs. He testified some of the bruises were slightly older than others and were consistent with blunt force trauma. During appellant's second recorded statement, the jury also heard appellant deny hitting Mena. During closing arguments, both defense counsel and the prosecutor commented on the bruising and whether appellant caused it. The jury found appellant guilty of murder. During the punishment phase, only Isabel Rivas testified. She testified about seeing blows and marks on Mena's body when she was with appellant, but she never said, nor was asked, where they came from. Both parties approved the jury charge, which did not include an instruction according to article 37.07 of the Texas Code of Criminal Procedure describing how to consider evidence of extraneous crimes or bad acts. The jury assessed punishment at life in prison.DISCUSSION
1. Jury Charge at Punishment Phase Article 37.07 of the Texas Code of Criminal Procedure governs the punishment charge in non-capital cases. Kutzner v. State, 994 S.W.2d 180, 188 (Tex.Crim.App. 1999). It provides in pertinent part:[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to . . . 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) (Vernon Supp. 2004). The plain language of this section provides such evidence may not be considered in assessing punishment until the fact-finder is satisfied beyond a reasonable doubt that the extraneous bad acts and offenses are attributable to the defendant. Huizar v. State, 12 S.W.3d 479, 481 (Tex.Crim.App. 2000). Once this requirement is met, the fact-finder may use the evidence however it chooses in assessing punishment. Id. at 484. A jury instruction to this effect is logically required, and absent such an instruction, the jury might apply a standard of proof less than reasonable doubt in determining the defendant's connection to such offenses and bad acts. Id. The State contends the record does not reveal any bad acts evidence was admitted against appellant. While both Dr. Narula and Isabel Rivas testified about bruises on Mena's body, the State indicates neither witness testified about who bruised the victim, and as a result, their testimony is insufficient to impute any bad acts to appellant. Although it is true neither witness stated the bruises on Mena's body were inflicted by appellant, that is clearly the conclusion the State wished the jury to draw. See Saenz v. State, 843 S.W.2d 24, 28 (Tex.Crim.App. 1992) (holding State's insinuation defendant was involved in prior criminal acts was unfairly prejudicial); Alto v. State, 739 S.W.2d 614, 619 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd). Cf. Rayme v. State, No. 14-04-00066-CR, 2005 WL 1252198, at *3 (Tex.App.-Houston [1st Dist.] May 26, 2005, pet. filed) (holding no jury instruction was required because evidence was not used or referred to by the State during the punishment phase). In the State's closing argument during the guilt/innocence phase, the prosecutor said, "You look at those photos, and you want to talk about the age of those bruises. What we do know is that they were there. They are undisputed evidence about what that man was putting her through." In addition during the punishment phase, after telling the jury appellant deserved a life sentence, the prosecutor said, "[Y]ou look at the ultimate tattoo that he put in her head; and you look at the lovely little art work that he put on her body." Closing argument is not evidence, but it does serve as a summation of evidence and reasonable deduction from the evidence. See Campbell v. State, 610 S.W.2d 754, 756 (Tex.Crim.App. 1980). As such, the jury could have easily concluded appellant abused Mena on prior occasions. In addition, when the State rested its case at the punishment phase, it offered all evidence admitted during the guilt/innocence phase of the trial. The jury may consider the evidence admitted during the guilt/innocence phase when assessing punishment. Duffy v. State, 567 S.W.2d 197, 208 (Tex.Crim.App. 1978); Allen v. State, 47 S.W.3d 47, 50 (Tex.App.-Fort Worth 2001, pet. ref'd) (requiring the reasonable doubt instruction at punishment regardless of whether the evidence of bad acts was introduced at the guilt/innocence phase or the punishment phase). In this case, any evidence admitted during the guilt/innocence phase pertaining to bruising on Mena's body may have been considered to assess appellant's punishment. Because extraneous bad acts evidence was admitted against appellant, we hold the trial court should have sua sponte instructed the jury pursuant to article 37.07. Because the trial court did not do so, we now determine whether this error was harmful. 2. Harm Analysis When the trial court fails to instruct the jury during punishment according to article 37.07, this court must conduct the harm analysis according to Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984). Huizar, 12 S.W.3d at 484-85. For error not preserved by an objection made at trial, as is the case here, the error must be so harmful the defendant was denied a "fair and impartial trial." Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986). In other words, the defendant must have suffered actual "egregious harm." Almanza, 686 S.W.2d at 171. The harm must be actual, rather than merely theoretical. Dickey v. State, 22 S.W.3d 490, 492 (Tex.Crim.App. 1999) ; Almanza, 686 S.W.2d at 174. Egregious harm is present when a reviewing court finds the case for conviction or punishment was actually made clearly and significantly more persuasive by the error. Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991). To determine whether the error caused egregious harm, we must consider all parts of the record that bear upon the subject, such as the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Almanza, 686 S.W.2d at 171. Egregious harm is a difficult standard and must be proved on a case-by-case basis. Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App. 2002). Appellant contends he suffered egregious harm because no motive was established to explain why appellant would kill the mother of their three children without the implication he abused her, the prosecutor's argument to the jury linking the bruises to appellant was inflammatory, and nothing in the jury charge cures the omission of the reasonable doubt instruction. Appellant further argues there were no guidelines for the jury's consideration of domestic abuse evidence, and the result was a life sentence. Appellant also contends there is no admitted evidence linking appellant to the bruises found on Mena's body, only speculation raised by the prosecutor during closing arguments. The jury charge authorized the jury to take into consideration all the facts shown by the evidence admitted before them: "You are further instructed that in fixing the defendant's punishment, which you will show in your verdict, you may take into consideration all the facts shown by the evidence admitted before you in the full trial of this case and the law as submitted to you in this charge." This jury instruction, without the reasonable doubt limitation required by article 37.07, is troubling. Allen, 47 S.W.3d at 52. However, that concern is offset by the other evidence before the jury. See id; Huizar v. State, 29 S.W.3d 249, 251 (Tex.App.-San Antonio 2000, pet ref'd) (on remand). The bruises on Mena's body were only part of the evidence the jury had to consider in assessing punishment. Some of the other evidence before the jury included: Mena's mother's concern over appellant's knowing where she and the children now live for fear if he ever got out of prison; police testimony appellant accidentally shot himself in the leg with a small caliber pistol three months before Mena's death; appellant's admitted participation in gang activity in California; and testimony that Mena's death was caused by a close contact entry wound to the head, demonstrating the gun was close to, or touching, her head when fired. The jury also considered appellant's two prior convictions in California for battery and a hit and run. Appellant stipulated to these convictions before resting his case during the punishment phase, and the convictions were read to the jury. The record also shows, during punishment deliberations, the jury asked to see appellant's penitentiary packet, which was comprised of the two convictions in California. Because these convictions had been properly adjudicated and were part of the defendant's criminal record, no article 37.07 instruction was required before they could be considered by the jury in this case. Bluitt v. State, 137 S.W.3d 51, 54 (Tex.Crim.App. 2004). On remand to consider the harm analysis under Almanza, the court of appeals in Huizar considered the evidence heard by the jury, which consisted of many more extraneous offenses and bad acts than are present here. Huizar, 29 S.W.3d at 251 (on remand). Evidence in that trial included repeated acts of violence towards the defendant's ex-girlfriend's property and harassment towards her personally, opinion testimony from a narcotics officer that the defendant was not a peaceful or law-abiding citizen, and sexual assault of a minor. Huizar v. State, 966 S.W.2d 702, 706-07 (Tex.App.-San Antonio 1998, pet. granted), rev'd, 12 S.W.3d 479 (Tex.Crim.App. 2000). Yet, that court did not find egregious harm when the resulting sentence was 99 years in prison. Huizar, 29 S.W.3d at 251 (on remand). Here, the jury's consideration at punishment of the inference appellant was physically abusive to Mena without an article 37.07 instruction may be evidence of some harm, but it is not evidence of egregious harm. Other evidence was also introduced and considered by the jury involving appellant's prior convictions in California for battery and a hit and run. Although a sentence of life in prison may seem to be harsh, that sentence is within the range of punishment for murder and is justified by the totality of the evidence before the jury. See Allen, 47 S.W.3d at 52; Huizar, 29 S.W.3d at 251 (on remand). Accordingly, we find no egregious harm in the court's failure to sua sponte instruct the jury pursuant to article 37.07 and overrule appellant's sole issue on appeal.