Opinion
No. 05-16-00012-CR
10-28-2016
NOHEL FRANCISCO-SANCHEZ, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 3 Dallas County, Texas
Trial Court Cause No. F14-59703-J
MEMORANDUM OPINION
Before Justices Lang, Myers, and Evans
Opinion by Justice Evans
Nohel Francisco Sanchez appeals his conviction for murder. In a single issue, appellant contends that the trial court abused its discretion by allowing evidence of extraneous offenses to be admitted through inadmissible hearsay. We affirm the trial court's judgment.
BACKGROUND
Appellant was indicted for the murder of his common-law wife, Brenda Gomez-Llanes. On November 9, 2015, appellant pleaded guilty to the offense without a plea agreement as to punishment. Appellant was admonished in accordance with art. 26.13 of the Code of Criminal Procedure and his judicial confession and stipulation of evidence were admitted into evidence. The trial court accepted appellant's plea but deferred further proceedings, and reset the case for sentencing. The trial court also ordered the preparation of a presentence investigation report.
On December 21, 2015, the sentencing hearing was held. After the trial court again admonished appellant as to the range of punishment and took judicial notice of the presentence investigation report, the State presented testimony from numerous witnesses regarding the circumstances of the shooting. According to the testimony, the shooting occurred after appellant, his wife, and three children left a dinner party at a friend's apartment in Dallas. The couple's oldest child saw appellant shoot her mother and told the responding officer that her mother and father had been arguing at the party, that one of her parents had made the decision for everybody to leave, and that when they all got up to the truck, she saw her dad pull her mother by her hair and throw her onto the ground. She then saw her dad lift up his shirt, pull a gun from his waistband and shoot. The child ran to the apartment they had just left to get help for her mother. Another neighbor heard the gunfire, saw several people confronting appellant, and restrained him until the police arrived. The autopsy indicated that the victim suffered six gunshot wounds to the face and head from shots fired at close range.
ANALYSIS
Appellant contends that the trial court abused its discretion by allowing the State to present evidence of extraneous offenses through hearsay testimony. Appellant acknowledges that extraneous offense evidence is admissible at the punishment phase of a trial but argues that such evidence cannot be admitted through hearsay testimony. Appellant also argues that such evidence is admissible only after the trial judge has made a threshold determination that the evidence is relevant, and that the fact-finder must be satisfied beyond a reasonable doubt that the prior bad acts are attributable to the defendant. The State responds that appellant waived any complaint that the trial's court did not make a threshold finding that that the extraneous offenses were relevant and attributable to appellant. The State further contends the testimony was properly admitted under the excited utterance exception to the hearsay rule. We agree with the State.
Hearsay Evidence
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial court's decision will be upheld when that decision is within the zone of reasonable disagreement. Id.
During the punishment hearing, the State presented testimony from the victim's mother, Luciana Llanes, who testified about her relationship with Brenda and her children, as well as her daughter's relationship with appellant. Llanes testified that although she lived in California, she and her daughter spoke by telephone almost every day and that when she wanted to see her daughter and grandchildren, she paid for their trips to California. She testified that her daughter confided in her about parts of her marriage. The following exchange then occurred:
Q. Tell the judge about the unhappy parts.
A. He was very jealous. He beat her.
MR. SANCHEZ: Your Honor, just for - just for the record purposes, your Honor, I must object to hearsay. Anything from being told by the complainant would be hearsay and -
THE COURT: Objection sustained.
Q. (By Ms. Fargo) Let's talk about about a month prior to this offense. Did her oldest daughter call you on the phone?
A. That's right.
Q. And that's Daphne?
A. Yes, yes.
Q. And what was -- what was -- we can't talk about what Daphne told you, but after talking to Daphne, what did you do?
A. I asked for help from the Los Angeles police, to see if they could help me with the kids, because the kids were out of control. They were crying and crying and crying; and from there, they had me contact the police here in Texas. They asked me for an address where they lived.
Q. Let me ask you this. When Daphne called you, was she crying?
A. Yes.
Q. Could you tell whether or not she was upset about something that was happening?
A. Yes.
Q. And was whatever was happening, was it happening right as she was calling you?
A. Yes.
Q. What did she tell you was happening?
MR. SANCHEZ: I'd have to object to hearsay at this point.
THE COURT: Objection overruled.
THE INTERPRETER: I'm sorry, your Honor. I didn't hear you.
THE COURT: Objection overruled. She can answer the question.
Q. (By Ms. Fargo) What did Daphne tell you was happening?
A. I asked her, Why are you crying like that, my love? Why is it that your little brother and sister are crying? What is it that's happening? She said, Granny, I don't know what to do. My father has my mommy locked up in the room, and he's beating her really ugly, and I don't know what to do.
Q. And what did you tell her?
A. I told her, Calm down, my love, so your little brother and your little sister will stop crying. You need to calm down. You need to knock on the door, you know. Tell your dad, you know, to come to the phone. And she said, No, because he's got her locked in and he won't let her come out.
Hearsay is a statement that the declarant does not make while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted in the statement. TEX. R. EVID. 801(d). For hearsay to be admissible it must fit into an exception provided by a statute or the rules of evidence. One such exception is for excited utterances. TEX. R. EVID. 803(2); Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). An excited utterance is a "statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." TEX. R. EVID. 803(2); see Salazar v. State, 38 S.W.3d 141, 154 (Tex. Crim. App. 2001). The basis for the excited utterance exception is a psychological one, namely that when a person is in the instant grip of violent emotion, excitement or pain, he "ordinarily loses the capacity for reflection necessary to the fabrication of a falsehood and the 'truth will come out.'" Zuliani, 97 S.W.3d at 595.
In determining whether a hearsay statement is admissible as an excited utterance, the critical determination is "whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event" or condition at the time of the statement. McFarland v. State, 845 S.W.2d 824, 846 (Tex. Crim. App. 1992), overruled on other grounds by Bingham v. State, 915 S.W.2d 9 (Tex. Crim. App. 1994). The trial court may consider the time elapsed and whether the statement was in response to a question. Zuliani, 97 S.W.3d at 595. However, it is not dispositive that the statement is an answer to a question or was separated by a period of time from the startling event; these are simply factors to consider in determining whether the statement is admissible under the excited utterance hearsay exception. See Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). As the reviewing court, we must determine whether the statement was made "under such circumstances as would reasonably show that it resulted from impulse rather than reason and reflection." Zuliani, 97 S.W.3d at 596 (citing Fowler v. State, 379 S.W.2d 345, 347 (Tex. Crim. App. 1964)).
The statements in this case were made by the child while she was still clearly dominated by the emotion and fear of a startling event which was still taking place. LLanes testified that when Daphne called her, she could tell that Daphne was upset about something that was happening as she was talking to her. She also testified that when Daphne called her, she and the other children in the house were crying. LLanes told the child more than once to calm down so that her little brother and her little sister would stop crying. Daphne wanted help from her grandmother because she did not know what to do — her father had locked her mother in a room and was beating her. When LLanes told Daphne that she needed to knock on the door and tell her dad to come to the phone, Daphne told her, "No, because he's got her locked in and he won't let her come out." Llanes then called 911 in order to get immediate help for her daughter and grandchildren. Under these circumstances, we conclude the trial court did not abuse its discretion in admitting the statements as an excited utterance.
We note that the trial court admitted the testimony over appellant's objection without requesting a response from the State. If a party raises an objection to hearsay testimony, the burden shifts to the offeror to show the testimony is admissible pursuant to an exception to the hearsay rule. Cofield v. State, 891 S.W.2d 952, 954 (Tex. Crim. App. 1994). Even if an offered exception the hearsay does not apply, we will affirm if the evidence is admissible on any ground. Kipp v. State, 876 S.W.2d 330, 337 (Tex. Crim. App. 1994). There is no requirement that the proponent of hearsay testimony voice an exception to the hearsay rule when the trial court immediately rules in the proponent's favor. Ortega v. State, 126 S.W.3d 618, 622 (Tex. App.—Houston [14
Extraneous Offense Evidence
Evidence of extraneous bad acts is admissible during the punishment phase of trial if the trial court deems the evidence relevant to sentencing. See TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2016). The State "may offer evidence of any extraneous crime or bad act that is shown, beyond a reasonable doubt, either to have been (1) an act committed by the defendant or (2) an act for which he could be held criminally responsible." Haley v. State, 173 S.W.3d 510, 514 (Tex. Crim. App. 2005). When a jury determines punishment, the trial court first determines the threshold issue of admissibility of relevant evidence, but the jury, as the finder of fact, determines whether the extraneous offenses were proven beyond a reasonable doubt. See Mitchell v. State, 931 S.W.2d 950, 953 (Tex. Crim. App. 1996). When, as here, punishment is assessed by the trial court, the trial court performs both functions. Thus, it may hear evidence of an extraneous offense or bad act to determine its relevance, but the trial court must then find that the offense or bad act was proven beyond a reasonable doubt before considering that evidence in assessing punishment. Ortega, 126 S.W.3d at 622; Williams v. State, 958 S.W.2d 844, 845 (Tex. App. — Houston [14th Dist.] 1997, pet. ref'd). In order to show reversible error resulting from improperly admitted extraneous offense evidence, an appellant must present the appellate court with a record that affirmatively reflects that the trial court, acting as a fact finder, considered such evidence when assessing appellant's punishment. Otherwise, the appellate court cannot determine whether appellant was harmed by such evidence. Lockett v. State, 16 S.W.3d 504, 506 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd). Furthermore, in order to preserve an issue for appeal, a defendant must make a timely objection that specifically states the legal basis for the objection. Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990). An objection stating one legal basis may not be used to support a different legal theory on appeal. Id.
Appellant did not object to the admission of the statements pertaining to the extraneous offenses based on the fact that the trial court did not make a threshold determination of relevancy. His only objection was that the statements constituted hearsay. Therefore, appellant did not preserve any error regarding this complaint.
Moreover, even if the trial court did err, we conclude appellant was not harmed by the error. Appellant did not ask the trial court to make a determination as to whether the State had proved the offenses beyond a reasonable doubt, and without such a ruling, we cannot assume the trial court considered it when assessing punishment. Lockett, 16 S.W.3d at 506. Furthermore, the record reflects that similar testimony was admitted into evidence without objection. The victim's mother testified her daughter tried to leave appellant about four different times but that she always went back. She testified that she felt badly about Brenda going back to appellant because "he mistreated her and would beat her . . . ." The children's counselor testified that appellant's son told her that he would see his dad being abusive towards his mom and that he felt like something like this would eventually happen. The older daughter told the counselor that she was afraid of her dad hurting her mom and that "she would always be prepared, if something happened, she knew where the bags were and she would help get the car ready so that when Mom was ready to leave, they could go." In addition, appellant testified and admitted that he hit his wife in front of the children on at least two occasions. He also admitted that the children were not wrong if they remembered him being physically abusive to their mother.
The range of punishment for the offense of murder is five to ninety-nine years or life and a fine of up to $10,000. TEX. PENAL CODE ANN. §§ 12.32, 19.02 (West 2011). The plea offer was for fifty years. Appellant testified that he would have accepted a plea bargain of forty years. The defense argued that the proper sentence would be between thirty-five and fifty years. The State argued that the appropriate sentence was life. The trial court assessed punishment at 50 years' imprisonment.
Viewing the record as a whole, we conclude that appellant was not harmed by the admission of Llane's testimony about the statements made by Daphne during their phone call regarding appellant's prior offenses against her mother. We overrule appellant's sole issue.
CONCLUSION
We affirm the trial court's judgment.
/David Evans/
DAVID EVANS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
160012F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 3, Dallas County, Texas
Trial Court Cause No. F14-59703-J.
Opinion delivered by Justice Evans, Justices Lang and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 28th day of October, 2016.
th Dist.] 2004, pet. ref'd).