Opinion
NO. 01-09-00226-CR
10-18-2012
CHARLES NIETO, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 114th District Court
Smith County, Texas
Trial Court Case No. 4-95-95
MEMORANDUM OPINION
In 1995, a jury found appellant Charles Nieto guilty of the murder of his cousin, Gilbert Nieto, and sentenced him to life imprisonment. Nieto appealed his conviction and asserted three points of error: (1) that the trial court erred in denying his Batson challenge; (2) that the trial court abused its discretion by admitting evidence that Nieto brought a gun to a bootlegger's house shortly before the charged offense; and (3) that the trial court abused its discretion by admitting evidence that Nieto was in jail shortly before the charged offense. On original submission to this Court, we concluded that the trial court erred in denying his Batson challenge. See Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712 (1986); Nieto v. State, No. 01-09-00226-CR, 2010 WL 5117349, at *6 (Tex. App.— Houston [1st Dist.] Dec. 16, 2010) (mem. op, not designated for publication), rev'd, 365 S.W.3d 673 (Tex. Crim. App. 2012). We reversed the conviction and remanded to the trial court. The Texas Court of Criminal Appeals reversed our judgment, concluding that the trial court did not err in denying Nieto's Batson challenge. Nieto, 365 S.W.3d at 681. The Court of Criminal Appeals remanded the case to this Court for consideration of Nieto's two remaining issues: whether the trial court abused its discretion by admitting evidence that (1) Nieto brought a gun to a bootlegger's house shortly before the offense, and (2) Nieto was in jail shortly before the offense. Finding no reversible error, we affirm.
In 1997, the Twelfth Court of Appeals affirmed Nieto's conviction, but criticized the adequacy of appellate counsel's briefing. Nieto v. State, No. 12-95-00204-CR, (Tex. App.—Tyler May 29, 1997, no pet). Nieto then filed an application for a writ of habeas corpus with the Texas Court of Criminal Appeals, alleging ineffective assistance of counsel. The Court of Criminal Appeals remanded the application to the trial court for a hearing and then granted permission for Nieto to appeal his conviction within thirty days of that order. Ex parte Nieto, No. AP-76, 090, 2009 WL 256525, at * 1 (Tex. Crim. App. Feb. 4, 2009). Although this case was originally appealed to the Twelfth Court of Appeals, it was eventually transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts.
Background
On January 29, 1995, police responded to a 911 call informing them of a shooting. Upon arriving at the scene, the police found broken glass, blood, and a firearm. Officers were able to locate the vehicle involved in the incident at a nearby hospital. The officers found a substantial amount of blood on the driver's side of the vehicle, and the driver's side window was missing.
Dora Moralez was a passenger in the backseat of the car at the time of the shooting and was the person who placed the 911 call. She informed police officers that Nieto, who was a passenger in the car, had shot his cousin Gilbert, who was driving the car just before the shooting. When questioned at the hospital, Nieto told an officer that an unknown person had approached the car and shot Gilbert from the driver's side of the vehicle. Nieto later changed his account and told the officer that the person had shot through the passenger's side window.
Officers arrested Nieto and conducted a videotaped interview of him. During the interview, Nieto admitted shooting Gilbert but claimed it was an accident and that he had intended to point the pistol in front of Gilbert, not at him.
During trial, Moralez testified that before the shooting she, Nieto, and Gilbert drove to a bootlegger's house. Nieto left the car and went to speak with the bootlegger, while Moralez and Gilbert remained in the car. Moralez saw that Nieto had a gun behind his back while he was speaking with the bootlegger. Nieto dropped the gun on the ground, and the bootlegger took a few steps back. Nieto picked up the gun, reentered the car on the passenger's side, placed the gun on his lap, and told Gilbert that he had "dropped the gun."
As they were leaving the bootlegger's house, Gilbert told Nieto to "quit messing around and put the gun up." Nieto told Gilbert to shut up or he would shoot him, to which Gilbert responded, "Well, shoot me." Nieto then told Gilbert to stop the car. After a few minutes, Moralez heard Nieto handling the gun and saw him pull back the slide on the gun to chamber a round. Morlaez saw Nieto place the gun to Gilbert's head and fire. After Nieto fired the shot, Moralez got out of the car and ran to a nearby store to call the police. A pathologist who performed the autopsy on Gilbert also testified and told the jury that the muzzle of the gun was in contact with Gilbert's skin when it was discharged.
Lisa Nieto, Gilbert's sister and Nieto's cousin, also testified at trial. Lisa explained that Nieto had been arrested and put in jail about two weeks before the shooting. According to Lisa, Nieto was mad at Gilbert because Gilbert had not bailed Nieto out of jail. She heard the two argue about it multiple times in the days before the shooting. Lisa said that Nieto was still angry with Gilbert on the day of the shooting.
In his defense, Nieto presented the testimony of his aunt, Nancy Nieto, to rebut the State's evidence of motive. Nancy testified that from the time of Nieto's release from jail until Gilbert's death, she did not observe any animosity between Nieto and Gilbert. She further testified that she never heard Nieto accuse Gilbert of failing to help Nieto get out of jail.
Discussion
On appeal, Nieto argues that the trial court abused its discretion by admitting Moralez's testimony that Nieto brought a gun to a bootlegger's house and by admitting Lisa's testimony that Nieto was previously in jail.
A. Standard of Review
We review a trial court's decision to admit evidence for an abuse of discretion. See Shuffield v. State, 189 S.W.3d 782, 793 (Tex. Crim. App. 2006); Wolfberg v. State, 73 S.W.3d 441, 443 (Tex. App.—Houston [1st Dist.] 2002, pet. ref'd). A trial court abuses its discretion only if its decision is "so clearly wrong as to lie outside the zone within which reasonable people might disagree." Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). If the trial court's decision is correct on any theory of law applicable to the case, we will uphold the decision. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009). "When a trial court further decides not to exclude the evidence, finding that the probative value of the evidence is not outweighed by the danger of unfair prejudice, this decision too shall be given deference." Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003).
B. Admissibility of Moralez's testimony
Nieto argues that the trial court abused its discretion in admitting Moralez's testimony that he took a gun to a bootlegger's house shortly before the shooting. At trial, Nieto objected to the admissibility of the portion of Moralez's testimony in which she recounted Nieto's exchange with the bootlegger. According to Nieto, this testimony was inadmissible under Texas Rule of Evidence 403 because its probative value was substantially outweighed by its prejudicial effect. In response, the State argued this evidence was admissible as same transaction contextual evidence. The State also maintained that this evidence showed Nieto had control of the murder weapon in the time leading up to the shooting. The trial court concluded that Moralez's testimony was probative on the issue of whether, immediately before the shooting, Nieto had knowledge that the gun was in operating order and possibly may have had a bullet chambered at that time. The trial court overruled Nieto's objection, determining that the probative value of this testimony outweighed any prejudicial effects.
On appeal, Nieto maintains that the evidence was not probative as to the issue of intent or knowledge that the gun was loaded and deadly because Moralez's testimony contains no evidence that Nieto knew the weapon was loaded at the time of his encounter with the bootlegger. In fact, Nieto asserts, the evidence shows that Nieto chambered a round moments before shooting Gilbert, making irrelevant Moralez's testimony about what Nieto did or knew while at the bootlegger's house. Nieto contends that the State had no need to introduce the evidence of the events at the bootlegger's house other than to prejudice the jury. Therefore, according to Nieto, the "prejudicial effect of suggesting to the jury that Appellant was a violent man who associated with bootleggers" substantially outweighed any probative value.
Under Rule 403, relevant evidence may be excluded "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury . . . ." TEX. R. EVID. 403. In conducting this balancing test, courts should consider the following: (1) the inherent probative force of the proffered evidence along with (2) the proponent's need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate its probative force, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).
Whether erroneous admission of evidence constitutes reversible error is governed by Texas Rule of Appellate Procedure 44.2(b), which applies to non- constitutional errors in criminal cases. See TEX. R. APP. P. 44.2(b); Cruz v. State, 238 S.W.3d 381, 386 (Tex. App.—Houston [1st Dist.] 2006, pet. ref'd). The judgment will be reversed only if the error affected an appellant's substantial rights. See Kibble v. State, 340 S.W.3d 14, 20 (Tex. App.—Houston [1st Dist.] 2010, pet. ref'd). An error affects an appellant's substantial rights "when the error has a substantial and injurious effect or influence in determining the jury's verdict." Id. (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); James v. State, 264 S.W.3d 215, 222 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). An error that did not influence the jury or had but a slight effect on the jury is not reversible. McRae v. State, 152 S.W.3d 739, 744 (Tex. App.—Houston [1st Dist.] 2004, pet. ref'd) (citing Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001)). In making the determination of whether appellant's substantial rights were affected, the factors we consider include the nature of evidence supporting the verdict, the character of the alleged error, and how it might be considered in connection with other evidence in the case. Id. (citing Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003)). We should also consider whether the State emphasized the error, whether the erroneously admitted evidence was cumulative, and whether it was elicited from an expert. Id.
Here, even assuming the trial court erred in admitting evidence of Nieto's encounter with the bootlegger, we nevertheless conclude the error was harmless. The disputed issue at trial concerned whether the shooting was intentional or accidental, and the nature of the evidence supporting the jury's verdict was strong. Moralez, an eyewitness to the shooting, testified that Nieto and Gilbert were arguing when Nieto threatened to shoot Gilbert and told him to stop the car. According to Moralez's testimony, Nieto pulled the slide back on the gun, which chambered a round, placed the gun to Gilbert's head, and fired it. The pathologist's testimony that the gun was in contact with Gilbert's skin when it was fired confirmed Moralez's account of the shooting. This testimony and physical evidence directly contradicts Nieto's inconsistent accounts to police, including his final account in which he claimed that he pointed the gun in front of Gilbert, not at him. The allegedly improperly admitted evidence—that Nieto brought the gun to his encounter with the bootlegger—is insignificant in comparison and, if it influenced the jury at all, would have had but a slight effect. McRae, 152 S.W.3d at 744. Although this evidence was not cumulative and was discussed in the State's closing argument, it was elicited from a lay witness, not an expert. See id. After examining the record as a whole, we cannot say that the admission of Moralez's testimony, if erroneous, affected Nieto's substantial rights. See id. at 744-45 (finding that although evidence of improperly administered field sobriety test was erroneously admitted, that error had little effect on jury's verdict and that appellant's conviction would have been certain without that erroneously admitted evidence in light of abundance of evidence presented by State on issue of appellant's intoxication). Because Nieto's substantial rights were not affected, we conclude that any alleged error in admitting evidence about Nieto's exchange with the bootlegger was harmless and must, therefore, be disregarded. See id.; TEX. R. APP. P. 44.2.
We overrule Nieto's first issue.
C. Admissibility of Lisa's testimony
In his second issue, Nieto argues that the trial court abused its discretion in allowing Lisa to testify that, in the days before the shooting, Nieto was angry with Gilbert for not bailing him out of jail. Nieto objected to this testimony, arguing that this was extraneous-offense evidence and that the State had not given the required notice under Texas Rule of Evidence 404(b) of its intent to use it. Nieto further maintained that this evidence was more prejudicial than probative and, therefore, was inadmissible under Texas Rule of Evidence 403. The trial court allowed the evidence to be admitted, but excluded all evidence relating to the reason Nieto was in jail.
1. Rule 404(b)
Nieto contends that Lisa's testimony was evidence of an extraneous offense, and, as such, the State was required under Rule 404(b) to notify Nieto in advance of trial that it planned to introduce the evidence. Because the State only notified Nieto about the evidence on the day of trial, Nieto contends that this evidence was inadmissible under Rule 404(b). In response, the State maintains that the testimony did not constitute evidence of an extraneous offense, and therefore the Rule 404(b) notice requirement does not apply, because Lisa only mentioned the fact that Nieto was in jail without discussing the reason for his imprisonment.
Rule 404(b) allows evidence of "other crimes, wrongs or acts" to be admitted for purposes such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," and if "reasonable notice is given in advance of trial of intent to introduce such evidence." TEX. R. EVID. 404(b). To constitute an extraneous offense, the evidence must show a crime or bad act and the defendant's connection to it. Nguyen v. State, 177 S.W.3d 659, 666 (Tex. App.—Houston [1st Dist.] 2005, pet. ref'd). Evidence of an extraneous offense necessarily involves evidence of prior criminal conduct by the defendant. Id. "If the evidence fails to show that an offense was committed or that the accused was connected to the offense, then evidence of an extraneous offense is not established." Id. at 667 (citing McKay v. State, 707 S.W.2d 23, 32 (Tex. Crim. App. 1985)).
Under Rule 404(b), the admissibility of extraneous-offense evidence is conditioned on the State's compliance with the notice provision of Rule 404(b). Hernandez v. State, 176 S.W.3d 821, 824 (Tex. Crim. App. 2005). Because this notice requirement is a rule of evidence admissibility, "it is error to admit Rule 404(b) evidence when the State has not complied with the notice provision of Rule 404(b)." Id. However, because the notice requirement does not relate to substantive admissibility of evidence, "[t]he lack of notice does not render the evidence inherently unreliable, but instead raises a question about the effect of procedural noncompliance." Roethel v. State, 80 S.W.3d 276, 282 (Tex. App.— Austin 2002, no pet.) Such an error is not reversible unless the erroneous admission of evidence "had a substantial and injurious effect or influence in determining the jury's verdict." King, 953 S.W.2d at 271; see also TEX. R. APP. P. 44.2(b) ("Any other error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.").
The purpose of the Rule 404(b) notice provision is to prevent surprise and to allow the defendant to prepare a defense. See Hayden v. State, 66 S.W.3d 269, 272 (Tex. Crim. App. 2001) (purpose of Rule 404(b) notice requirement is to prevent surprise); see also Castle v. State, No. 03-09-00241-CR, 2010 WL 3370057, at * 3 (Tex. App.—Austin Aug. 25, 2010, no pet.) (mem. op., not designated for publication) (purpose of Rule 404(b) notice provision is to enable the defendant to prepare to meet the evidence of extraneous offenses). As explained by the Texas Court of Criminal Appeals, "[w]hen an appellate court determines that a jury's verdict was substantially influenced by the improper admission of substantivelyinadmissible Rule 404(b) evidence, that influence on the jury's verdict will always be 'injurious' since there was no proper purpose for the jury to consider the evidence." Hernandez, 176 S.W.3d at 825 (emphasis added). However, when otherwise substantively admissible Rule 404(b) evidence is improperly admitted due to the State's lack of compliance with Rule 404(b)'s notice requirements, "the error in admitting this evidence may have had a substantial effect or influence on the jury's verdict, but it cannot be said that this effect or influence was 'injurious' if the defendant was not surprised by the evidence." Id. Stated differently, we must "consider in our harm analysis whether the lack of notice surprised the defendant or adversely affected his trial strategy." Castle, 2010 WL 3370057, at *3 (citing Hernandez, 176 S.W.3d at 825-26); see also Guillory v. State, No. 13-10-00545-CR, 2011 WL 4996465, at *5 (Tex. App.—Corpus Christi Oct. 20, 2011, pet. ref'd) (mem. op., not designated for publication) ("[T]o show harm flowing from the lack of notice, an appellant must show both that he was surprised and show how his defense strategy would have been different.").
Assuming Lisa's testimony concerning Nieto's prior incarceration was extraneous-offense evidence; that the State failed to give Nieto proper notice under Rule 404(b); and that the trial court therefore erred in admitting this testimony, we conclude that any alleged error did not affect Nieto's substantial rights. It is clear that, if not for the State's alleged failure to comply with the notice requirement, this evidence would have been admissible under Rule 404(b) to show Nieto's motive for shooting Gilbert. Because this evidence would have been admissible but for the State's alleged violation of the notice requirement, we cannot find that any effect or influence that this testimony had on the jury's verdict was injurious unless Nieto was surprised by the evidence or the lack of notice adversely affected his trial strategy. See Hernandez, 176 S.W.3d at 825-26.
Nieto does not challenge the substantive admissibility of this evidence under Rule 404(b). His only contention is that the trial court erroneously admitted this evidence because the State failed to provide the requisite notice under Rule 404(b).
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The record reflects that defense counsel informed the trial court that he was surprised by this testimony and that he was not given sufficient time to prepare for its admission. He then requested a continuance to obtain witnesses, such as Nieto's aunt, Nancy Nieto, and uncle, Larry Castanay, who were with both Nieto and Gilbert in the days before and the day of the shooting, to rebut Lisa's testimony regarding Nieto's motive for shooting Gilbert. Rather than grant a continuance, the trial court, noting the extraordinary circumstances, excluded Nancy, who had been sitting in the courtroom throughout the trial, from the application of the Rule. The trial court then permitted defense counsel to question Nancy during a recess and to call Nieto's uncle at his workplace to determine whether his testimony would be helpful and necessary.
After returning from the recess, defense counsel informed the court that he had enough time to speak with Nancy and felt that her testimony would "cover the whole area that her husband's would have and perhaps more." He then decided to proceed to introduce Nancy as a defense witness. Nancy testified that she saw Nieto and Gilbert together on a regular basis and that Nieto and Gilbert were staying at her house the weekend of the shooting. Nancy testified that from the time of Nieto's release from jail until Gilbert's death, she did not observe any animosity between Nieto and Gilbert. She further testified that she never heard Nieto accuse Gilbert of failing to help Nieto get out of jail.
Although Nieto initially may have been surprised by the introduction of Lisa's testimony, he has not shown how his defense strategy might have been different had the State timely notified him of its intent to offer Lisa's testimony at trial, or how his defense was "injuriously" affected by the State's failure to provide reasonable notice. Nieto was given the opportunity by the trial court to speak to potential rebuttal witnesses, the exact witnesses he requested, and eventually called Nancy, whose testimony rebutted the State's evidence of motive. Given that Nieto was given the opportunity to—and did—develop evidence to rebut Lisa's testimony, we conclude that the alleged failure of the State to provide reasonable notice of the extraneous offense did not affect Nieto's substantial rights. See Hernandez, 176 S.W.3d at 825-26.
2. Rule 403
Nieto further asserts that Lisa's testimony that he was in jail was inadmissible under Rule 403 because its prejudicial effects substantially outweighed its probative value. According to Nieto, the evidence that he had been in jail "encouraged the jury to decide the case on the improper basis that he was a criminal." Nieto also argues that the State had little need for this evidence because of the eyewitness evidence of the dispute between Nieto and Gilbert and the shooting itself.
Under the first two factors of Rule 403 balancing test, we examine the probative value of the evidence and the State's need for the evidence. Gigliobianco, 210 S.W.3d at 641. The testimony had probative value because it demonstrated Nieto's possible motive for shooting Gilbert. Furthermore, the State had great need for this evidence. Nieto's principal argument was that the shooting was a mistake and this was the only evidence that showed Nieto's motive for killing Gilbert. These factors weigh strongly in favor of admissibility. Id.
For the third factor, we examine the tendency of the evidence to suggest decision on an improper basis. Evidence might have this tendency if it arouses the jury's hostility or sympathy for one side without regard to the probative force of the evidence. Gigliobianco, 210 S.W.3d at 641. This evidence could have aroused the jury's hostility for Nieto because it implied he committed some other offense. This factor weighs against admissibility.
For the fourth factor, we examine the tendency of the evidence to confuse or distract the jury from the main issue. "Evidence that consumes an inordinate amount of time to present or answer, for example, might tend to confuse or distract the jury from the main issues." Casey v. State, 215 S.W.3d 870, 880 (Tex. Crim. App. 2007). Here, Lisa's testimony about motive was brief and directly relevant to Nieto's motive and the intent element of the charged offense. As such, it has less potential to distract the jury from the charged offense. See Manning v. State, 114 S.W.3d 922, 928 (Tex. Crim. App. 2003) (holding that evidence of cocaine in defendant's blood could not distract jury from indicted offense of manslaughter because it was "proof of the indicted offense"). This factor weighs in favor of admissibility.
Under the fifth factor, we weigh any tendency of the evidence to be given undue weight by a jury that has not been properly equipped to evaluate the probative force of the evidence. Here, the evidence was presented as proof of Nieto's motive for shooting Gilbert. And, the evidence was not of a technical or scientific nature; rather, it concerned a matter "comprehensible by laypeople." Gaytan v. State, 331 S.W.3d 218, 228 (Tex. App.—Austin 2011, pet. ref'd). The trial court excluded evidence of the reason Nieto was in jail—a stabbing—and thus mitigated any potential for the jury to give undue weight to the evidence. The trial court also equipped the jury to evaluate the probative force of this testimony. It instructed the jury not to consider any testimony regarding the defendant's having committed offenses other than the charged offense for any purpose other than to determine intent, knowledge, absence of mistake, or accident in connection with the charged offense. This factor weighs in favor of admissibility.
Finally, under the sixth factor we consider the time required to develop the evidence. As mentioned, this portion of Lisa's testimony at issue was brief. Thus, its presentation did not "consume an inordinate amount of time." Gigliobianco, 210 S.W.3d at 641-42. This factor weighs in favor of admissibility.
Balancing all of the factors, we conclude that the trial court did not abuse its discretion in determining the testimony was not substantially more prejudicial than probative under Rule 403.
We overrule Neito's second issue.
Conclusion
We affirm the trial court's judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack, and Justices Bland and Huddle. Do not publish. TEX. R. APP. P. 47.2(b).