Opinion
No. 14-02-00489-CR
Opinion filed October 2, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 21st District Court, Burleson County, Texas, Trial Court Cause No. 12,328
Panel consists of Justices YATES, HUDSON, and EDELMAN.
OPINION
Homero Herrera Hernandez appeals a conviction for capital murder on numerous grounds. We affirm.
A jury convicted appellant of capital murder, and the trial court assessed punishment at life imprisonment.
Extraneous Offense Evidence Notice
Appellant's first issue argues that the trial court erred in admitting extraneous offense evidence because the State failed to provide him with sufficient notice of its intent to introduce such evidence at trial, as required by Texas Rule of Evidence 404(b). With regard to the extraneous offense evidence in the form of taped statements (regarding drug activity, shooting a gun at a wrecked Blazer, attempting to sell an altered weapon), appellant claims that the State's notice was inadequate because he was provided the taped statements at the time his counsel was appointed, over three months before he filed his request for notice, and thus not in response to the request. With regard to the extraneous offense evidence that was not contained in his taped statements (such as bullets recovered from the wrecked Blazer, a photo depicting appellant's gang affiliation, testimony by Wendy Vasquez that he shot a gun outside of her truck, testimony by Katie Stultz that he tried to sell her the murder weapon, and Detective Angel Martinez's testimony regarding appellant's alleged gang apparel), appellant asserts that the State failed to give any kind of notice of its intent to offer. The State does not assert that it gave proper notice but only that appellant was not harmed by the lack of notice. The purpose of the rule 404(b) notice requirement is to prevent surprise ( i.e., rather than to exclude evidence). Tran v. State, No. 74040, 2003 WL 1799013, at *7 (Tex.Crim.App. April 2, 2003). Therefore, if the trial court erred in admitting the evidence due to lack of notice (as contrasted from other inadmissibility), we must determine whether the record reflects harm to appellant in terms of surprise. Such harm might exist, for example, if the lack of notice prejudiced appellant's ability to contest the admissibility of the evidence, rebut it, or offer evidence or arguments to mitigate it. However, we find no indication in the record (or appellant's brief) of any such prejudice or that notice from the State could have materially enhanced defense counsel's ability to counter this evidence. Therefore, we conclude that any error in admitting the extraneous offense evidence without the requisite notice was harmless, and we overrule appellant's first point of error.Prejudicial Effect
Appellant's second issue contends that the trial court abused its discretion by admitting the extraneous offense evidence, referred to in issue one, because it was irrelevant and, alternatively, unfairly prejudicial to appellant. A trial court's decision to admit evidence is reviewed for abuse of discretion and will thus be reversed only if it is outside the zone of reasonable disagreement. Allen v. State, 108 S.W.3d 281, 284 (Tex.Crim.App. 2003). Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Tex.R.Evid. 403. However, rule 403 favors admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Allen, 108 S.W.3d at 284. As appellant's brief acknowledges, the State offered the extraneous offense evidence to show that appellant and the complainant were partners in drug activities and had a close enough relationship that the complainant would have confided in appellant such things as where he kept his handgun (the murder weapon) and would have allowed appellant to get within point-blank range to shoot the complainant. Appellant contends that this theory was speculative, based on inconsistent statements, and offered to bolster the State's weak case with evidence of appellant's bad character. However, this unsupported contention is not sufficient to overcome the presumption that the evidence was more probative that prejudicial. Therefore, appellant's second issue is overruled.Lesser-included Offense Charge
Appellant's third issue asserts that the trial court erred by denying his request to include the lesser-included offenses of burglary and theft in the court's charge because there was evidence that: (1) appellant was not the triggerman; (2) there was no conspiracy to commit the burglary; (3) the killing was not committed in furtherance of a conspiracy to commit burglary; and (4) appellant should not have anticipated the killing. A jury charge must be given on a lesser offense if: (1) it is included within the proof necessary to establish the offense charged; and (2) some evidence exists in the record that if the defendant is guilty, he is guilty only of the lesser offense. Hampton v. State, 109 S.W.3d 437, 440 (Tex.Crim.App. 2003). Thus, evidence that the defendant committed no offense does not require a lesser-included offense charge. Lofton v. State, 45 S.W.3d 649, 652 (Tex.Crim.App. 2001). When the State has tried a defendant on an indictment in which alternative theories of capital murder are alleged, the defendant is entitled to a requested lesser-included offense charge if a rational jury could convict him only of the lesser-included offense after considering each of the alternative theories of commission. Feldman v. State, 71 S.W.3d 738, 752 (Tex.Crim.App. 2002). In that event, evidence must exist that negates each alternative theory on which the greater offense has been alleged. Id. at 753. In this case, the indictment alleged that appellant fatally shot the complainant while burglarizing his habitation. The jury charge authorized the jury to convict appellant of capital murder either as the principal actor or as a party and conspirator to the burglary. The State does not dispute that burglary and theft are lesser-included offenses of capital murder, as it was charged in this case, satisfying the first prong of the test. Therefore, our only issue is on the second prong, whether there is some evidence by which a rational jury could acquit appellant of capital murder but convict him of burglary or theft. As to the first of the two alternative theories of capital murder, the second prong is satisfied in that the record contains evidence that appellant was not the principal actor, i.e., the "triggerman," who shot the complainant. On the alternative (party-conspiracy) theory, the second prong will be satisfied if there is any evidence that: (1) there was no murder; (2) the murder was not committed in furtherance of the conspiracy; or (3) the murder should not have been anticipated as a result of carrying out the conspiracy. As to the first item, it is undisputed that a murder occurred. As to the second item, appellant argues that the murder was not committed in furtherance of a conspiracy to burglarize the complainant's home because there was no such conspiracy. However, the facts appellant relies on to show the lack of such a conspiracy (even if supported by evidence in the record, which we do not decide) would also show that a burglary was not committed at all or that appellant did not participate in it, not that he was guilty of committing only a burglary. Appellant also contends that the murder was not committed in furtherance of the conspiracy to commit burglary because the actual triggerman, Bautista, killed the complainant for other reasons, i.e., because the complainant stole money or drugs from Bautista and to assure that the complainant would not inform on Bautista. However, before going to the complainant's home, Bautista expressed an intent to take the complainant's belongings, and the murder unquestionably facilitated the burglary. Therefore, the fact that Bautista had additional reasons for committing the murder is not evidence that it was not committed in furtherance of the conspiracy to commit the burglary. As to the third item, appellant relies on the following facts to show that the murder should not have been anticipated: (1) appellant did not know where Bautista got the gun he used to shoot the complainant; (2) Bautista did not tell appellant anything when they drove to the complainant's house; (3) Bautista did not tell appellant he would kill the complainant; and (4) Bautista got the gun from the complainant's house. However, the evidence is uncontroverted that appellant knew Bautista to be violent and that Bautista was going to the complainant's house because he believed the complainant had stolen from him in their drug dealings. From these circumstances, a murder should have been anticipated from the conspiracy, and the evidence that appellant had not seen Bautista with a weapon and Bautista had not expressed an intent to kill the complainant did not show that a murder should not have been anticipated. Therefore, based on the contentions in appellant's issue, a jury could not have rationally found that he was only guilty of burglary or theft. Accordingly, he was not entitled to a charge on those lesser-included offenses, and his third point of error is overruled.Sufficiency of the Evidence
Appellant's fourth issue alleges that the evidence is legally and factually insufficient to prove that appellant was the triggerman or that the complainant was killed in furtherance of a conspiracy to commit burglary and appellant should have anticipated the killing. Evidence is legally insufficient if, viewed in the light most favorable to the prosecution, no rational jury could find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Bustamante v. State, 106 S.W.3d 738, 740 (Tex.Crim.App. 2003). Evidence is factually insufficient if, viewed in a neutral light, the evidence supporting the verdict is so weak or so against the overwhelming weight of contrary evidence as to render the verdict clearly wrong and manifestly unjust. Bustamante, 106 S.W.3d. at 740. When the trial court's charge authorizes the jury to convict on several different theories, as in this case, the verdict of guilty will be upheld if the evidence is sufficient on any of the theories. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003). In support of his legal and factual sufficiency challenges, appellant argues that: (1) the evidence shows the murder was drug-related, rather than the result of a conspiracy to commit burglary; (2) there is no evidence that appellant was told or knew of any firearms that might be used or of any intention by Bautista to do other than get back his money or drugs from the complainant; (3) the evidence showed that appellant was afraid of Bautista and simply obeying his orders. However, this section of appellant's brief contains no record cites to support these factual assertions. In addition, there was evidence in the case that appellant: (1) had heard Bautista say he wanted to get a truck and go to the complainant's house because the complainant had things he wanted; (2) had heard Bautista say he needed to "fix" things with the complainant and make sure the complainant would not tell on him with the police; (3) had heard Bautista say that he needed to do something about the people who stole his money and cocaine; (4) knew that Bautista had threatened other people with guns; (5) drove Bautista to the complainant's house; (6) broke through the back door window so Bautista could enter the house; (7) was present there when complainant was shot; (8) stole goods from the complainant's house; and (9) opened the trunk of the car so Bautista could put the stolen property in it. In addition, items belonging to the complainant, including the gun Bautista used to shoot him, were found by police at appellant's house after appellant attempted unsuccessfully to sell the gun to a pawnshop. This evidence is legally sufficient to prove that the complainant was killed in furtherance of a conspiracy to commit burglary and that appellant should have anticipated the killing. In support of his factual sufficiency claim, appellant claims that: (1) there was not a conspiracy to burglarize the complainant because the evidence shows that appellant was afraid of Bautista and simply obeyed his orders; (2) the killing was not in furtherance of a conspiracy to burglarize the complainant because the evidence showed it instead occurred because of a bad drug deal; and (3) the killing should not have been anticipated by appellant because there was no evidence to show that a confrontation was foreseeable or that appellant knew there were any weapons in Bautista's possession or in the complainant's home. Again, this section of appellant's brief provides no cites to authority or the record to support these contentions. In addition, a general fear of Bautista by appellant, even if supported by the evidence, would not be a defense in the absence of an immediate threat or, alternatively, if appellant intentionally, knowingly, or recklessly placed himself in a situation in which he would be subjected to compulsion. As explained in the preceding section, on the lesser-included offense charge, appellant's second and third contentions also fail to show the lack of a conspiracy or that the murder should not have been anticipated as a result of carrying out the conspiracy to commit the burglary. Therefore, appellant's fourth issue fails to demonstrate that the evidence was legally or factually insufficient and is overruled.Exclusion of Co-defendant's Testimony
Appellant's fifth issue contends that the trial court abused its discretion by not allowing appellant to call Bautista to the stand to show that he was afraid of Bautista and that no conspiracy existed between them. In particular, appellant asserts that he had a right to call Bautista to testify live so the jury could hear his voice, observe his physical characteristics, assess his demeanor, and thereby find that there was no conspiracy and appellant acted out of fear. Moreover, appellant claims that Bautista had no right to assert a Fifth Amendment privilege against self-incrimination because the questions appellant intended to ask could not have possibly incriminated Bautista. A witness's constitutional privilege against self-incrimination overrides a defendant's constitutional right to compulsory process of the witness. Tran, 2003 WL 1799013 at 5 n. 5. Therefore, a defendant generally may not call as a witness a co-defendant who has indicated he will assert his privilege against self-incrimination. Anderson v. State, 717 S.W.2d 622, 626 (Tex.Crim.App. 1986). This privilege extends not only to answers that would themselves support a conviction, but also those that would furnish a link in the chain of evidence needed to prosecute the claimant. Ohio v. Reiner, 532 U.S. 17, 20 (2001). For the privilege to apply, it need only be evident from the implications of the question, in the setting in which it was asked, that a responsive answer, or explanation why it cannot be answered, might be dangerous in that an injurious disclosure could result. Id. at 21. Therefore, a claimant may be required to testify only if it clearly appears to the court that he is mistaken as to having a reasonable cause to apprehend danger from answering. Hoffman v. United States, 341 U.S. 479, 486 (1951). In this case, the record reflects that Bautista, a co-defendant who was then awaiting his own trial for the same offense, was questioned by the judge and affirmatively stated that he intended to invoke his Fifth Amendment right based on the advice of counsel. Appellant's counsel stated that the questions he would ask Bautista were to explore appellant's statements indicating his fear of Bautista, describing him as a "big, strong, scary guy"; to ask him his height, weight, age, educational background, where he came from; and to "corroborate any evidence that the State introduced and opened the door to." As indicated previously, in discussing appellant's fourth issue, a general fear of Bautista by appellant would not have been material in this case. Conversely, to the extent any questioning of Bautista would have been material to appellant's case, it posed a legitimate risk of incriminating Bautista. Under these circumstances, appellant's fifth issue fails to demonstrate error by the trial court in not allowing appellant to call Bautista to testify, and it is overruled.Victim Impact Evidence
Appellant's sixth issue argues that the trial court erred in admitting two photographs depicting the complainant and members of his family and two small children holding dolls because these photos were relevant only as victim impact evidence, which is admissible only for determining punishment, not guilt or innocence. Appellant further argues that the photos were unnecessary because the complainant had already been identified, and the potential to improperly generate sympathy from the jury was great. The State asked five questions regarding the photos to establish that the witness could recognize the complainant in the photos and did not refer to them again during the case. There is no indication in the record that the jury was shown the photos when they were admitted into evidence or subsequently. Although the jury heard six days of testimony, they deliberated on appellant's guilt for only two hours and did not request to see any of the 170 exhibits admitted into evidence. Under these circumstances, even if the admission of these two photos was in error, the record plainly reflects that it did not influence the jury and was harmless. Accordingly, appellant's sixth point of error is overruled.Reference to Polygraph Test
Appellant's seventh issue contends the trial court erred in allowing the State to admit evidence that appellant was offered and refused to take a polygraph examination during questioning. However, the excerpt to which appellant objects does not indicate whether he refused to take the polygraph exam:Detective: Will you take a polygraph? You know, a lie detector test?
Appellant: Mm hm.
Detective: On this?
Interpreter: A test to one look if you are having the truth.
Detective: Will you take a polygraph?
Appellant: It don't matter.In addition, it appears that the trial court ultimately sustained appellant's objection on this excerpt:
THE COURT: If you'll excise the last portion of the tape and the transcript that refers to the polygraph, leave the other one in there if you want to and the other objection will be overruled.Moreover, although the excerpt was included in the portion of the tape played for the jury and in the exhibit containing the corresponding transcript, it was a momentary portion within several long tapes that were played for the jury, it was not referred to again by the State, and there is no indication in the record that the jury ever requested to listen to it again or view the corresponding transcript. Under these circumstances, we can find neither error nor harm with regard to appellant's seventh issue, and it is overruled.
Batson Challenge
Appellant's eighth issue asserts that he was denied due process and equal protection of law when the trial court permitted the State to peremptorily strike a potential juror, Sweeney, based on his race after appellant asserted a Batson challenge. The use of peremptory challenges to exclude persons from a jury because of their race violates the Equal Protection Clause of the Fourteenth Amendment. Herron v. State, 86 S.W.3d 621, 630 (Tex.Crim.App. 2002). The procedure for asserting such a Batson issue is: (1) the defendant presents a prima facie claim that prosecutors used peremptory challenges to exclude venire members on the basis of race; (2) the State offers a facially race-neutral explanation for those strikes; and (3) the trial court determines whether the defendant has carried his burden of proving purposeful discrimination based on the persuasiveness of the prosecutor's justification. See Miller-El v. Cockrell, 123 S.Ct. 1029, 1040 (2003). At the third step, the issue comes down to whether the trial court finds the prosecutor's race-neutral reason to be credible based on such factors as the prosecutor's demeanor, the reasonableness of the explanation, and the extent to which it has some basis in accepted trial strategy. Id. Implausible or fantastic justifications may be found to be pretexts for purposeful discrimination. Id. However, the trial court's decision on this issue represents a finding of fact accorded great deference and will not be overturned unless it is clearly erroneous. Id. at 1041. On appeal, the record is reviewed in the light most favorable to the trial court's ruling. Adanandus v. State, 866 S.W.2d 210, 224 (Tex.Crim.App. 1993). In this case, at the conclusion of voir dire, appellant challenged the State's striking of three potential jurors, including Mr. Sweeney, as being racially motivated. The State countered that it was striking Sweeney because he: (1) was diabetic and insulin dependent; (2) did not have his insulin or a test kit with him; (3) appeared to have difficulty paying attention; and (4) had advised the court that he had attempted to get a medical excuse due to his diabetic condition. The State represented that it had thus exercised a strike on him due to concern about his medical condition. Appellant's counsel did not cross-examine the prosecutor but merely argued that Sweeney's failure to have his medicine and test kit with him that day did not mean that there was no other way to take care of his medical situation. Counsel also stated that he did not notice Sweeney misunderstanding any questions and that there were other jurors with medical concerns as well. Appellant did not question, or respond to, the State's statement regarding Sweeney's unsuccessful attempt to get a medical excuse. The trial judge overruled appellant's challenge to the State's use of a peremptory strike on Sweeney. On appeal, appellant contends that the State's explanation was not supported by the record. However, he did not make this contention in the trial court. Moreover, the record is clear that Sweeney was diabetic, and the State's purported reason for striking him out of concern for his medical condition is not implausible on its face. Therefore, the trial court's determination that the prosecutor was credible in offering this explanation must be accorded great deference. Because appellant's eighth issue does not, therefore, demonstrate that the trial court's ruling was clearly erroneous, it is overruled.Phone Records
Appellant's ninth issue alleges that the trial court erroneously admitted into evidence, over his hearsay objection, an exhibit containing telephone company call records without satisfying the requisites for the business records exception to the hearsay prohibition. Appellant contends that this error was harmful because the State twice used these records in closing argument to link appellant to the complainant on the day of the killing and to show that appellant knew the complainant's whereabouts:Whose number did [the complainant] call from his cell phone that morning. . . . ? [Appellant].
* * * *
Who would have known that [the complainant] was gone and may have had some idea of how long he was going to be gone, because they talked to him that day, and they knew a little bit about his habits because they had spent so much time with him? This defendant.Again, even if the phone records were admitted in error for failing to establish the business records exception, we find no indication that the error was harmful. The cover letter accompanying the records is on telephone company letterhead and is signed by its manager of court order compliance. There is nothing to cast doubt on the authenticity or trustworthiness of this information. In addition, the testimony pertaining to the exhibit was limited to identifying it and did not delve into any particular entries or other information reflected in the exhibit. Similarly, the remarks made by the State in closing argument, above, do not reference the phone records, and there is no indication in the record that the jury was ever shown, or requested to see, this exhibit. Therefore, its admission was highly unlikely to have influenced the jury. Accordingly, appellant's ninth issue is overruled, and the judgment of the trial court is affirmed.