Opinion
No. 05-02-01099-CR
Opinion Filed May 23, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-02177-LI. AFFIRMED
Before Justices MORRIS, WRIGHT, and MOSELEY.
MEMORANDUM OPINION
A jury convicted Alfredo Gonzales of aggravated assault with a deadly weapon and assessed punishment, enhanced by two previous felony convictions, at ninety-nine years confinement. Gonzales appeals. In four points of error, he asserts the trial court erred by: sustaining a State's hearsay objection; instructing the jury regarding the availability of good conduct time credit; failing to make a preliminary determination on the admissibility of an extraneous offense at the punishment phase of the trial; and implicitly finding that a jury could conclude beyond a reasonable doubt that Gonzales committed the extraneous offense. Additionally, Gonzales asserts article 37.07, section 4(a) of the code of criminal procedure is unconstitutional as applied to him. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. Rs. App. P. 47.2(a), 47.4. We affirm the trial court's judgment. In his first point of error, Gonzales argues the trial court erred by sustaining the State's hearsay objection to a written statement given by Gonzales's girlfriend, who was a passenger in his truck on the morning the assault occurred. Despite Gonzales's efforts to subpoena her, the girlfriend was not present at trial. Therefore, Gonzales tried to admit her written statement, which indicated the complainant had a gun and shot at Gonzales and her, although she never actually saw the complainant shooting at them. The record reflects that when she gave her statement three days after the assault she was calm and pleasant; however, she did appear "nervous" when recalling the shooting. The admission of evidence is a matter within the discretion of the trial court. Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex.Crim.App. 1990); Riney v. State, 60 S.W.3d 386, 388 (Tex.App.-Dallas 2001, no pet.). Absent an abuse of discretion, we do not disturb a trial court's ruling on the admissibility of hearsay evidence. Riney, 60 S.W.3d at 388. As long as the trial court's ruling was "within the zone of reasonable disagreement," there is no abuse of discretion, and we must uphold the trial court's ruling. Montgomery, 810 S.W.2d at 391 (op. on reh'g). Gonzales acknowledged in his brief that the statement was hearsay and was inadmissible unless it comes within an exception to the hearsay rule. See Tex. Rs. Evid. 801(d), 802. He further acknowledged the statement did not fit the excited utterance, the recorded recollection, or any of the exceptions to the hearsay rule under rule of evidence 804, which were the grounds for admissibility he argued at trial. See id. Rs. 803(2), 803(5), 804. We agree with Gonzales that the statement was hearsay and did not fit into one of the exceptions Gonzales argued at trial. Thus, the trial court did not err by excluding the statement. See Riney, 60 S.W.3d at 388 (no error by excluding evidence that did not fit excited utterance exception to hearsay rule). But see Poole v. State, 910 S.W.2d 93, 95 (Tex.App.-Eastland 1995, no pet.) (error to admit evidence that did not fit a rule 804 exception), Kuczaj v. State, 848 S.W.2d 284, 287 (Tex.App.-Fort Worth 1993, no pet.) (error to admit evidence that did not fit recorded recollection exception). After acknowledging the statement was hearsay and did not fit one of the hearsay exceptions he argued at trial, Gonzales now argues on appeal the trial court erred by not admitting Gonzalez's girlfriend's statement because the exclusion of the statement violated the Due Process Clause of the Fourteen Amendment by preventing him from presenting "any defense." Gonzales did not raise his due process argument below. Because Gonzales did not raise his due process argument at trial, he has failed to preserve this point of error for our review. See Castillo v. State, 79 S.W.3d 817, 827 (Tex.App.-Dallas 2002, pet. ref'd); see also Tex.R.App.P. 33.1(a). Although Gonzales has couched this point as constitutional error, he still has failed to preserve this point of error. See id.; see also Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim.App. 2000), cert. denied, 531 U.S. 1128 (2001). Even if Gonzales preserved this point of error, his due process argument is without merit. Gonzales cites Potier v. State, 68 S.W.3d 657 (Tex. Crim App. 2002), to support his contention that his due process rights were violated. In Potier, the court of criminal appeals did not hold that a trial court's valid exclusion of evidence under the hearsay rule violated the defendant's due process rights, but rather, held the trial court's erroneous exclusion, due to a misinterpretation of the hearsay rule, did not rise to the level of constitutional error such that the harmless error rule did not apply. 68 S.W.3d at 666. The court further held "that the exclusion of a defendant's evidence will be constitutional error only if the evidence forms such a vital portion of the case that exclusion effectively precludes the defendant from presenting a defense." Id. at 665 (emphasis added). In this case, as we concluded above, the trial court did not erroneously exclude the statement under the hearsay rule; thus, Gonzales's reliance on Potier is misplaced. More importantly, the trial court's exclusion of the statement, although potentially relevant, did not prevent Gonzales from presenting "a defense." See id. at 666. At trial, Gonzales vigorously argued the State failed to prove its case beyond a reasonable doubt. Gonzales pointed to the facts that no gun was found and that although he was arrested on the day of the assault he was not tested to determine whether he had recently fired a gun. Gonzales questioned the credibility of the State's two key eyewitnesses, the complainant and his friend who was with the complainant on the morning of the shooting. Gonzales noted differences in their testimonies, and questioned the reliability of their identification of him as the shooter. Gonzales implicitly argued that his girlfriend could have been the shooter because it was dark, the shooting occurred at approximately 4:30 a.m., and that the complainant and his friend could not positively tell who did the actual shooting. Based on the record, Gonzales not only had a defense, but he vigorously presented this defense to the jury. Because Gonzales had and presented "a defense," we conclude Gonzales's due process rights were not violated. See id. Having concluded Gonzales's due process rights were not violated, we further conclude the trial court's ruling to exclude Gonzales's girlfriend's statement was "within the zone of reasonable disagreement" as to its admissibility; therefore, the court did not abuse its discretion. See Montgomery, 810 S.W.2d at 391 (op. on reh'g). Consequently, we uphold the trial court's ruling and resolve Gonzales's first point against him. Gonzales's second and third points of errors are interrelated so we will discuss them together. Gonzales argues the trial court's use of the good conduct time instruction was unconstitutional as applied to him and the court erred by instructing the jury on the availability of good conduct time credit. The legislature mandates the inclusion of the statutory good conduct time and parole instruction in the punishment phase's jury charge. Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2003); Cormier v. State, 955 S.W.2d 161, 164 (Tex.App.-Austin 1997, no pet.). However, because the jury found Gonzales used or exhibited a deadly weapon during the commission of his crime, he cannot receive a reduction, due to good conduct, in the time that he has to serve. Tex. Gov't Code Ann. § 508.149(a)(1) (Vernon 1998 Supp. 2003); Tex. Code Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2003). Even though Gonzales cannot receive a reduction for good conduct, his due process rights were not violated, and it was not unconstitutional for the trial court to include section 4(a)'s mandatory language in the charge. See Luquis v. State, 72 S.W.3d 355, 368 (Tex.Crim.App. 2002); Bui v. State, 68 S.W.3d 830, 842-44 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Furthermore, the trial court did not err by instructing the jury on the availability of good conduct time credit. See Luquis, 72 S.W.3d at 363. Thus, we resolve Gonzales's second and third points of error against him. We also discuss Gonzales's fourth and fifth points of error together because they are interrelated. On appeal, Gonzales argues the trial court erred by failing to make a preliminary determination on the admissibility of an extraneous offense at the punishment phase of the trial; further, if the court did make a preliminary determination, then it abused its discretion by implicitly finding that the jury could conclude beyond a reasonable doubt that Gonzalez committed the extraneous offense. At trial, Gonzales first objected to the admission of testimony of the extraneous offense on rule 404 grounds, then moved for a hearing to prove that the extraneous offense occurred, and finally objected to the admissibility of the extraneous offense on rule 403 grounds. The court overruled all of Gonzales's objections and his motion for a hearing. After the trial court overruled Gonzales's rule 403 objection, it asked Gonzales if he had any further objections. He responded, "No, your Honor." Because Gonzales did not object at trial on the grounds he now asserts on appeal, he has failed to preserve these points of error for our review. See Williams v. State, 995 S.W.2d 754, 761 (Tex.App.-San Antonio 1999, no pet.); see also Tex.R.App.P. 33.1(a). Accordingly, we resolve Gonzales fourth and fifth points of error against him. Having resolved all of Gonzales's five points of error against him, we affirm the trial court's judgment.