Opinion
No. 05-11-00844-CR
08-02-2012
SERGIO SMITH HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM as modified; Opinion issued August 8, 2012
On Appeal from the 401st Judicial District Court
Collin County, Texas
Trial Court Cause No. 401-82187-10
OPINION
Before Justices FitzGerald, Murphy, and Fillmore
Opinion By Justice Fillmore
A jury convicted Sergio Smith Hernandez of aggravated robbery, enhanced by two prior convictions, and assessed punishment of life imprisonment. In two issues, Hernandez argues there is insufficient evidence to support the conviction because the State failed to produce credible evidence that a firearm was used during the offense and the trial court erred by admitting into evidence during the guilt phase of the trial a recording of two telephone calls made by Hernandez from the Collin County Jail. We affirm the trial court's judgment. Background
Hernandez also complains the evidence is insufficient to support a finding a bat was used as a deadly weapon during the offense. Although the indictment charged that Hernandez "use[d] and exhibit[ed] a deadly weapon, to-wit: a bat and a firearm" during the offense, the trial court found during the charge conference that there was insufficient evidence a bat was used during the offense. The trial court charged the jury only on the use of a firearm during the offense.
On July 14, 2010, Fred Cruz was working upstairs in his home when he heard a noise at the door. Believing it was his wife at the door, Fred started to go downstairs when a Caucasian man hit him in the head with "a bat or something metal." Fred rolled down the stairs and briefly lost consciousness. Fred was then dragged into the kitchen. Although Fred was told to put his face on the floor, he saw a reflection in the front of the dishwasher of an African-American man with "cornrows" who had two tattoos on his face. At trial, Fred identified Hernandez as the man he saw.
Fred testified there were two African-American men and one Caucasian man in the house, and the intruders had a silver gun. The men put a pillowcase over Fred's head and secured it around his throat with duct tape. They also bound his hands and wrists with duct tape. The men were "looking for money" and repeatedly hit Fred with the gun. Fred testified he knew he was being hit by a gun due to the weight of the object hitting him. According to Fred, the gun was "put to his head" and he felt the gun on his temple. At one point, the gun was "clapped back" and a bullet "came flying out." Fred heard the bullet hit the floor. Fred ultimately lost consciousness again.
Fred's wife, Amie Cruz, returned to the house with the couple's son during the robbery. When she entered the kitchen, she saw her husband lying on the floor with a bloody pillowcase over his head. There were two African-American men and one Caucasian man in the house. Amie was approached by a man with tattoos on his face, wearing a brown "Dickies" outfit and holding a black gun. At trial, Amie identified Hernandez as that man. Amie testified the gun was either a "380" or a "9 millimeter." The men put one of Amie's son's shirts over her head and said they wanted money, jewelry, and drugs. At some point during the robbery, the men removed the shirt from Amie's head and put duct tape over her eyes and around her wrists.
Aspen Cox testified he discussed committing a robbery with Hernandez, who Cox knew as "Blu," Justin Johnson, and Devin Clark. Cox eventually proposed they rob Fred because he was the "only drug dealer" Cox knew. The robbery was initially planned for a Sunday, but did not take place on the original date because "they couldn't get a gun." The robbery was then set for a few days later. Cox did not participate in the actual robbery, but met the other three men after the robbery. Cox testified he heard Hernandez say they tied up Fred and, when Fred would not tell them where the money was, Hernandez "hit him in the head with the gun." Cox testified he had pleaded guilty to aggravated robbery, but did not have a sentencing agreement with the State.
Clark confirmed that he, Cox, Johnson, and Hernandez discussed committing a robbery and that Cox told them about Fred. The robbery was originally planned for a Sunday, but did not occur because "Blu didn't have a weapon." Eventually, Hernandez obtained a gun, and Clark, Johnson, and Hernandez met at a restaurant. Hernandez put on a "tan jumper," and Clark and Hernandez got a lawnmower out of the trunk. Hernandez and Johnson pretended to be soliciting yard work while Clark stayed with the car. After Hernandez and Johnson went into the house, Clark backed the car into the driveway. When Clark entered the house, Fred was on the floor with his face covered. Hernandez had a small gun in his hand, and Clark saw Hernandez hit Fred on the top of the head with the gun. Clark testified he had pleaded guilty to aggravated robbery and was hoping to receive probation. However, he did not have a sentencing agreement with the State.
The robbers took money, tattoo equipment, DJ equipment, computers, cellphones, and credit cards from the house. According to Clark, they also took some marijuana and some cocaine. Following the robbery, the police found an unfired nine millimeter bullet on the kitchen floor of Fred's house. After Hernandez was arrested, the police seized a roll of duct tape from the house where Hernandez was staying.
After his arrest, Hernandez was held in the Collin County Jail. All telephone calls made by inmates in the Collin County Jail are recorded. The State introduced into evidence a recording of two telephone calls made by Hernandez. In the first call, Hernandez instructed a woman that (1) a pair of black and white "Air Forces" with blood on them, (2) a tan Dickie jumpsuit, (3) garden gloves with "red stuff" on them, (4) a "clip for a nine," and (5) a roll of duct tape needed to "evaporate." Hernandez stated the items should be on the ground in "Chris's room," and the woman indicated she would look for the items. In the second call, a woman told Hernandez that "it's taken care of" and Hernandez does not "have to worry no more." During that call, a man informed Hernandez that "everything" has "disappeared." When Hernandez specifically asked about the five items, the man indicated everything but the duct tape was "gone." The man believed "somebody actually got the duct tape."
The jury convicted Hernandez of aggravated robbery, found two enhancement paragraphs true, and sentenced Hernandez to life imprisonment. Sufficiency of the Evidence
In his first issue, Hernandez argues the evidence is insufficient to support the conviction because the evidence regarding the use of a firearm during the offense "failed to meet the standard of legal sufficiency." Hernandez specifically contends the only evidence of a firearm was:
the testimony of an unconscious victim whose head was covered by a pillow case, another victim whose head was covered by a shirt, and a third individual, testifying as a witness for the state, who was a co-defendant also charged with committing this aggravated robbery and had yet to be sentenced in this matter.
We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct. 1763 (2012). We examine all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. This standard recognizes "the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319; see also Adames, 353 S.W.3d at 860. The jury, as the fact finder, is entitled to judge the credibility of the witnesses, and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). We defer to the jury's determinations of credibility, and may not substitute our judgment for that of the fact finder. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000) (in conducting legal sufficiency analysis, appellate court "may not re-weigh the evidence and substitute our judgment for that of the jury"). In evaluating a sufficiency claim, we consider all evidence presented to the jury, regardless of whether it was properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). "Circumstantial evidence is as probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
As charged in this case, a person commits robbery if, in the course of committing theft and with intent to obtain or maintain control of the property, he intentionally, knowingly, or recklessly causes bodily injury to another. Tex. Penal Code Ann. § 29.02(a)(1) (West 2011). A person commits aggravated robbery if he commits robbery and he uses or exhibits a deadly weapon. Id. § 29.03(a)(2) (West 2011). A firearm is a deadly weapon per se. Id. § 1.07(a)(17)(A) (West Supp. 2012); Ex parte Huskins, 176 S.W.3d 818, 820 (Tex. Crim. App. 2005).
Hernandez argues the only evidence he used a gun came from Fred, who was unconscious and had his face covered with a pillowcase, from Amie, whose face was covered with a shirt, and from Clark, who had pleaded guilty to the aggravated robbery, but had not yet been sentenced. Hernandez asserts this evidence does not meet the sufficiency standard set out in Jackson. However, both Fred and Amie testified they saw the gun when their eyes were not covered. Further, Fred testified that, after his head was covered with the pillowcase, the gun was held to his head and he was hit with the gun. Fred also testified he heard a bullet from the gun fall to the kitchen floor, and the police found a bullet from a nine millimeter gun in the kitchen. Amie testified that, when she entered the house, Hernandez had a "380" or "9 millimeter" gun in his hand. Further, according to both Clark and Cox, the robbery was delayed because they did not have a gun. Clark testified Hernandez ultimately obtained a gun, he saw the gun in Hernandez's hand during the robbery, and he saw Hernandez hit Fred on the head with the gun. Cox testified Hernandez admitted he hit Fred in the head with the gun because Fred would not tell him where any money was located. Finally, after he was arrested, Hernandez requested an acquaintance make a "clip from a nine" disappear.
The jury heard all the testimony. It was the role of the jury to judge the credibility of the testimony, and we must defer to that determination. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 899. Reviewing all the evidence in the light most favorable to the jury's verdict, we conclude a rational jury could have found Hernandez guilty of all the elements of the offense beyond a reasonable doubt, including use by Hernandez of a deadly weapon during the offense. See Jackson, 443 U.S. at 319; Adames, 353 S.W.3d at 860. We resolve Hernandez's first issue against him. Right to Confrontation
In his second issue, Hernandez argues the trial court's admission into evidence of the recording of Hernandez's two telephone conversations while in the Collin County Jail was error because the statements in the recording are testimonial and he was denied his right to confront the witnesses against him, the recording was neither authenticated nor credible, and the trial court erred by not requiring the State to provide a rational ground for the admissibility of the recording.
We first note the only objection made by Hernandez at trial to the admission of the recording was "on grounds of confrontation, Crawford under federal and state law, sixth amendment right to confront and cross-examine." The trial court overruled the objection. Hernandez did not object that the recording was not authenticated or credible or that the trial court failed to require the State to provide a rational basis for the admissibility of the recording. Accordingly, Hernandez failed to preserve these arguments for appellant review. See Tex. R. App. P. 33.1(a)(1); Lovill v. State, 319 S.W.3d 687, 691-92 (Tex. Crim. App. 2009) ("A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial.").
We next turn to Hernandez's argument the statements in the recording were testimonial and, therefore, he had a right to confront the witnesses against him. Generally, we review a trial court's decision on the admission of evidence under an abuse of discretion standard. Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). However, whether an out-of-court statement is testimonial is a question of law. Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010); Wall v. State, 184 S.W.3d 730, 742-43 (Tex. Crim. App. 2006). Although we defer to the trial court's determination of historical facts and credibility, we review de novo the ultimate constitutional question of whether the facts, as determined by the trial court, establish the statement is testimonial. Langham, 305 S.W.3d at 576; Wall, 184 S.W.3d at 742.
The Confrontation Clause of the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, provides that all criminal defendants have the right to confront any witnesses against them. U.S. Const. amend. VI. The admission of testimonial hearsay statements of witnesses absent from trial are admissible over a Confrontation Clause objection only when the declarant has been shown to be unavailable and where the defendant has had a prior opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36, 53-54, 59, 68 (2004); De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008); Wall, 184 S.W.3d at 734-35. "[T]he Crawford rule reflects the Framers' preferred mechanism (cross- examination) for ensuring that inaccurate out-of-court testimonial statements are not used to convict an accused." Whorton v. Bockting, 549 U.S. 406, 418 (2007); see also De La Paz, 273 S.W.3d at 680.
Pointer v. Texas, 380 U.S. 400, 406 (1965).
"It is the testimonial character of the statement that separates it from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause." Davis v. Washington, 547 U.S. 813, 821 (2006). To determine if a statement is testimonial, we must decide whether it had "a primary purpose of creating an out-of-court substitute for trial testimony." Michigan v. Bryant, 131 S. Ct. 1143, 1155, 179 L.Ed.2d 93, 107 (2011). Although the United States Supreme Court has not provided a comprehensive definition of "testimonial statements," such statements may include (1) ex parte in-court testimony or its functional equivalent, (2) extrajudicial statements contained in formalized testimonial materials, and (3) statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309-10 (2009) (quoting Crawford, 541 U.S. at 51-52); Langham, 305 S.W.3d at 576. Whether a statement is testimonial is determined on a case-by-case basis, using the perception of an objectively reasonable declarant. Wall, 184 S.W.3d at 742-43.
There are multiple declarants on the recording admitted at trial. The first is Hernandez himself. His statements during the telephone conversations constitute admissions by a party- opponent and, as such, are not hearsay. See Tex. R. Evid. 801(e)(2)(A); Cantu v. State, 339 S.W.3d 688, 691 (Tex. App.-Fort Worth 2011, no pet.) (mem. op.) (as an admission of a party-opponent, defendant's out-of-court statement was not hearsay and did not fall within class of evidence prohibited by Confrontation Clause); see also United States v. Tolliver, 454 F.3d 660, 665 (7th Cir. 2006). Because Hernandez's statements on the recording do not fall within the type of evidence prohibited by the Confrontation Clause, the trial court did not err by admitting Hernandez's statements. See Davis v. State, 268 S.W.3d 683, 709 (Tex. App.-Fort Worth 2008, pet. ref'd).
The recordings also include statements by two other declarants, a male and a female. However, both at trial and on appeal, Hernandez addressed the recording globally. Hernandez did not argue at trial, and does not argue on appeal, that the admission of the statements by the two other declarants, as opposed to the admission of his statements, violated his right to confront the witnesses against him. When an exhibit contains both admissible and inadmissible material, the objection to the exhibit must specifically refer to the material that is objectionable in order to preserve error. Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009) (appellant's trial objections, including objection under Crawford, "were insufficient to preserve any error in the admission of any portion of the audiotapes because these objections did not specifically point out which portions of the audiotapes were objected to as inadmissible"); Reyes v. State, 314 S.W.3d 74, 78 (Tex. App.-San Antonio 2010, no pet.) (trial court did not err by admitting recording of 911 call when portions of recording were admissible and defendant objected only to entire recording and did not request specific portions be excluded). Accordingly, Hernandez has failed to preserve any error by the trial court in admitting the statements of the other two declarants on the recording of the telephone conversations.
However, even if Hernandez had preserved his complaint as to the other two declarants' statements, the admission of those statements did not violate Hernandez's right to confrontation under the Sixth Amendment. The statements are not like any of the types of statements that Crawford identified as being "testimonial." The recording does not contain declarations by either person for the purpose of later establishing or proving some fact in a criminal trial. See Crawford, 541 U.S. at 51-52; Davis, 547 U.S. at 827 (statements not testimonial because 911 call "is ordinarily not designed primarily to 'establis[h] or prov[e]' some past fact, but to describe current circumstances"); Coronado v. State, 351 S.W.3d 315, 324 (Tex. Crim. App. 2011) (statements are testimonial if "objective purpose of the interview is to question a person about past events and that person's statements about those past events would likely be relevant to a future criminal proceeding). The recording does not function like an affidavit, is not the product of a police interrogation, and is not prior testimony from a court proceeding. See Crawford, 541 U.S. at 51-52; Langham, 305 S.W.3d at 576. Rather, the statements were made in a conversation between friends. See Crawford, 541 U.S. at 51 ("An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."); Woods v. State, 152 S.W.3d 105, 114 (Tex. Crim. App. 2004); see also Giles v. California, 554 U.S. 353, 376 (2008) ("[s]tatements to friends and neighbors about abuse and intimidation . . . would be excluded, if at all, only by hearsay rules" and not by Sixth Amendment Confrontation Clause). Because nothing in the record indicates the statements were made with the expectation the statements would be available for use at a later trial, we conclude the statements made by the other two declarants on the recording were not testimonial statements that are subject to the Confrontation Clause. Consequently, the trial court did not err by admitting those statements into evidence. We resolve Hernandez's second issue against him.
See also Fratta v. State, No. AP-76188, 2011 WL 4582498, at *4 (Tex. Crim. App. Oct. 5, 2011) (not designated for publication), cert. denied, 132 S. Ct. 2714 (2012) (statement non-testimonial when it was not made in response to any question and its prospective language described declarant's expectations rather than past event).
Modification of Judgment
In its appellee's brief, the State asks this Court to modify the trial court's judgment to reflect that the jury found the two alleged enhancements to be true. This Court has the authority to modify an incorrect judgment to make the record speak the truth when we have the necessary information to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd). We, therefore, modify the trial court's judgment to reflect Hernandez pleaded "not true" to each of the enhancement paragraphs and the jury found each enhancement paragraph to be "true."
We affirm the trial court's judgment as modified.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110844F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
SERGIO SMITH HERNANDEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00844-CR
Appeal from the 401st Judicial District Court of Collin County, Texas. (Tr.Ct.No. 401- 82187-10).
Opinion delivered by Justice Fillmore, Justices FitzGerald and Murphy participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED as follows:.
The sections of the trial court's judgment entitled "Plea to 1st Enhancement Paragraph" and "Plea to 2nd Enhancement/Habitual Paragraph" are MODIFIED to reflect appellant Sergio Smith Hernandez pleaded "Not True."
The sections of the trial court's judgment entitled "Findings on 1st Enhancement Paragraph" and "Findings on 2nd Enhancement/Habitual Paragraph" are MODIFIED to reflect the jury found the enhancements to be "True."
As modified, the judgment is AFFIRMED.
Judgment entered August 8, 2012.
ROBERT M. FILLMORE
JUSTICE