Opinion
Nos. 05-06-00963-CR, 05-06-00964-CR
Opinion issued September 29, 2009. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the Criminal District Court No. 2 Dallas County, Texas, Trial Court Cause Nos. F04-85387-NQI F06-00416-UQI.
Before Justices MORRIS, BRIDGES, and O'NEILL.
MEMORANDUM OPINION ON REMAND
Appellant Mark Anthony De La Paz appeals his convictions for tampering with physical evidence and aggravated perjury. On original submission, we concluded the evidence was legally sufficient to support both convictions, but reversed the convictions and remanded to the trial court because the trial court erred in admitting extraneous offense evidence. The State filed a petition for discretionary review. The Texas Court of Criminal Appeals reversed our judgment concluding the extraneous offense evidence was properly admitted. The Court of Criminal Appeals remanded to this Court for consideration of appellant's remaining issues. In appellant's original brief, he asserted the evidence was factually insufficient to support his convictions and that the trial court erred in sustaining the State's Batson objection. In a supplemental brief, appellant presented two additional issues contending the trial court (1) abused its discretion in denying appellant's motion requesting a change in venue and (2) erred in ordering appellant's sentences be stacked with a prior conviction. For the following reasons, we affirm the trial court's judgments. The following factual recitation is taken largely from our original opinion. Appellant was a Dallas police officer. The events that led to his two convictions arise out of the wrongful arrest of Jose Vega. The night before Vega's arrest, Daniel Alonso, a paid confidential informant for the Dallas Police Department, and his friend Roberto Gonzalez planted a large amount of fake cocaine in a car at the service station where Vega worked. The following day, appellant asked another Dallas police officer to set up video surveillance outside the service station. Appellant later met with Alonso at a nearby 7-11 convenience store. Appellant, in violation of police procedure, did not search Alonso or his car before the "buy." Further, an unauthorized individual, Roberto Gonzalez, was with the Alonso. After meeting with appellant, Alonso went to the service station. Appellant and his partner Eddie Herrera followed in their covert vehicle. The surveillance videotape shows Alonso arriving at the service station, parking his car, and walking into a garage bay. At about the same time, appellant's vehicle is seen driving by the service station. After the "buy," Alonso met appellant at the 7-11 and gave him two kilos of what appeared to be cocaine. Police obtained a search warrant and found about twenty more kilos of "cocaine" in a car at the service station. Vega was arrested. Police later discovered the drugs were fake. Following Vega's wrongful arrest, appellant claimed — both in a police report and later under oath at a prior trial — that he observed Alonso come into face to face contact with Vega inside the garage bay. According to appellant, he observed this contact as he and Herrera drove by the service station. The "contact" was relevant because it corroborated Alonso's claim that Vega sold him drugs. In a subsequent investigation, appellant and his partner Herrera were questioned because the surveillance tape did not show any contact between Alonso and Vega. The State indicted appellant for fabrication of evidence and perjury because it alleged appellant lied about having seen contact between Vega and Alonso. In addition to the surveillance tape, to show appellant lied, the State relied on the testimony of Vega, Gonzalez and appellant's partner Eddie Herrera. Vega testified that he did not make contact with Alonso, and he was actually under a van working on its engine at the time Alonso was in the garage bay. Vega conceded he sued the City for his wrongful arrest and three month incarceration. He settled for $460,000. Gonzalez also testified. He admitted that he helped Alonso plant the drugs. He also testified that at the time appellant claimed he saw contact between Vega and Alonso, Vega was actually under the van. Gonzalez admitted he was testifying for the State in an effort to get leniency for his own involvement in the offense. Herrera also testified for the State. Herrera claimed that when internal affairs began investigating, appellant asked him to lie and say they saw Vega and Alonso make contact. Herrera also admitted he was testifying for the State in an effort to obtain a favorable plea bargain. Appellant's defense was that he did not lie about seeing Alonso make contact with Vega. Appelllant testified that when he and Herrera met Alonso at the convenience store before the buy, he "visually" searched Alonso and the car. He said Gonzalez was not with Alonso at that time although he acknowledges Gonzalez is seen in Alonso's car on the surveillance tape shortly thereafter. After he followed Alonso to the service station, he and Herrera drove by the service station. As they did so, appellant looked back over this shoulder, and he saw Alonso just inside the garage bay. For a brief moment, he saw Vega "making contact" with Alonso. Appellant denied ever having asked Herrera to lie. In rebuttal, the State presented extraneous offense evidence that appellant fabricated evidence against two other individuals who were set up with fake drugs under circumstances similar to those presented in this case. In our original opinion, we addressed appellant's first and third issues and concluded the evidence was legally sufficient to support appellant's convictions. However, we reversed on appellant's fifth issue complaining of error in the admission of extraneous offense evidence. The court of criminal appeals concluded we erred in doing so. It remanded to this Court for consideration of appellant's remaining issues. In his second and fourth issues, appellant contends the evidence is factually insufficient to support both convictions because the State failed to prove beyond a reasonable doubt that he lied, either in his police report or at his subsequent trial, about seeing Alonso make contact with Vega. In reviewing the factual sufficiency of the evidence, we view all of the evidence in a neutral light to determine whether the jury's verdict of guilt was rationally justified. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We determine whether (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt, even if sufficient standing alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Unless the record clearly reveals a different result is appropriate, we must defer to the fact finder's determination concerning what weight to give contradictory testimony. Lancon, 253 S.W.3d at 705. The State presented evidence that appellant claimed, in both a police report and at his subsequent trial, that he saw contact between Alonso and Vega. To prove this was false, the State presented evidence from Alonso who said he did not make any contact with Vega and testimony from Gonzalez, who was with Alonso, that Vega was under the truck at the time appellant claimed he saw the contact. The State also presented a videotape that showed it would be virtually impossible for appellant to have seen what he claimed to have seen. Finally, the State presented evidence that appellant asked Herrera to lie about what they had seen. Although appellant attempted to discredit the State's witnesses, the State presented evidence that appellant had falsified evidence in two other cases involving fake drugs. After reviewing all the evidence in a neutral light, we cannot conclude either (1) the proof of guilt is so obviously weak as to undermine confidence in the fact finder's verdict, or (2) the proof of guilt is greatly outweighed by contrary proof. See Johnson, 23 S.W.3d at 11; Clewis, 922 S.W.2d at 129. We resolve the second and fourth issues against appellant. In his sixth issue, appellant contends the trial court erred in granting the State's Batson objection to his use of peremptory strikes against two venirepersons. After the parties exercised their peremptory strikes, the State made a Batson objection complaining that appellant struck all six Hispanics that were within the strike zone, including venireperson 1, Norma Elva Hernandez, and venireperson 11, Ramon Suarez. After a hearing, the trial court concluded appellant's strikes against Hernandez and Suarez were racially motivated and seated both jurors on the jury. Before the remaining veniremembers were excused, appellant, apparently for the first time, noticed that Suarez's juror information card showed that he identified himself as Philippine. He asked the trial court to reconsider its ruling because Suarez was not Hispanic and he therefore could not have discriminated against him because he was Hispanic. The trial court refused to reconsider. The State may raise a Batson complaint contesting the defense's use of peremptory challenges in a racially discriminatory manner. Georgia v. McCollum, 505 U.S. 42, 44 (1992). Batson entails a three-step analysis. The opponent of the peremptory strike bears the initial burden of making out a prima facie case of racial discrimination. Watkins v. State, 245 S.W.3d 444, 447 (Tex. Crim. App.), cert. denied, 129 S.Ct. 92 (2008); Greer v. State, 05-08-00146-CR, 2009 WL 1591694, *1 (Tex. App.-Dallas June 9, 2009, no pet.). If it carries this burden, the burden of production shifts to the proponent of the strike to come forward with a race-neutral reason for the strike. Greer, 2009 WL 1591694 at *1. If a race-neutral explanation is proffered, the trial court must then decide, as a question of fact, whether the opponent of the strike has proved by a preponderance of the evidence that the strike was a pretext for purposeful racial discrimination. Id. We skip the first step of the analysis if the trial court proceeded immediately to the second step by inquiring into the reasons for the strike. Id. We overturn the trial judge's ruling on a Batson challenge only if that ruling was clearly erroneous. Whitsey, 245 S.W.3d at 447-48. This standard is "highly deferential" to the trial judge. Gibson v. State, 144 S.W.3d 530, 534 (Tex. Crim. App. 2004). A ruling is clearly erroneous if, after a review of the entire record, we are left with the definite and firm conviction that the trial court committed a mistake. Whitsey v. State, 796 S.W.2d 707, 721, 726 (Tex. Crim. App. 1989). If the trial judge's decision is plausible in light of the record viewed in its entirety, or if the judge chose between two permissible views of the evidence, we may not reverse even if we are convinced that we would have decided the matter differently had we been sitting as the trier of fact. Id. at 722. According to appellant, the trial court erred in granting the State's Batson objection because the State failed to prove by a preponderance that his use of strikes was racially motivated. Defense counsel claimed he struck Hernandez and Suarez because they were both sleeping during voir dire. In addition, he struck Hernandez because she did not answer many questions on her jury questionnaire. However, the State presented evidence at the Batson hearing that neither Suarez or Hernandez slept during voir dire. The trial judge was present during voir dire and could see for himself whether the venirepersons were sleeping during voir dire. Further, the trial judge is the judge of the credibility of the witnesses at a Batson earing. The State also presented evidence that defense counsel failed to strike a non-Hispanic venireperson who, like Hernandez, also left many blanks on her questionnaire. Disparate treatment of similarly situated venirepersons gives rise to an inference of racial discrimination. See Greer, at 7. Based on this record, we cannot conclude that the trial court's decision to sustain the State's Batson objection was clearly erroneous. In reaching this conclusion, we agree with the trial court that appellant's discovery, after he used his strikes, that Suarez identified himself as Philippine not Hispanic on his juror information card is immaterial to our analysis. We resolve the sixth issue against appellant. Appellant also filed a supplemental brief raising two additional issues. In his first supplemental issue, appellant asserts the trial court erred in denying his motion for a change of venue based on pretrial publicity. The standard for review on appeal from a ruling on a motion to change venue is "abuse of discretion." See Gonzales v. State, 222 S.W.3d 446, 449 (Tex. Crim. App. 2007). The trial court's decision concerning a motion to change venue will be upheld if it "falls within the zone of reasonable disagreement." Id. Section 31.03(a) of the code of criminal procedure provides that a change in venue may be granted if the defendant establishes that "there exists in the county where the prosecution is commenced, so great a prejudice against him that he cannot obtain a fair and impartial trial." Tex. Code Crim. Proc. Ann. art. 31.03(a) (Vernon 2006). To justify a change of venue based on media attention, a defendant must show that the publicity was pervasive, prejudicial and inflammatory. Gonzalez, 222 S.W.3d at 449. Widespread publicity by itself is not considered inherently prejudicial. Id. Indeed, even extensive knowledge of the case or defendant in the community as a result of pretrial publicity is not sufficient if there is not also some showing of prejudicial or inflammatory coverage. Id. In examining whether pretrial publicity is prejudicial and inflammatory, a trial court may take three matters into consideration; (1) the nature of the publicity, (2) any evidence presented at a change of venue hearing, and (3) testimony received from veniremembers at voir dire. Id. at 450. News stories, be it from print, radio or television, that are accurate and objective in their coverage, are generally considered by this Court not to be prejudicial or inflammatory. Id. After reviewing the briefs and the record citations, we conclude appellant has not shown the trial court abused its discretion in denying his motion to change venue. While appellant generally complains the substance of the news stories was prejudicial, he has directed this Court to nothing to support this contention. Appellant makes no effort to discuss the substance of any of the news articles or to articulate how the news coverage was prejudicial. A defendant must show both (1) the media coverage was pervasive and (2) the character of the publicity was prejudicial and inflammatory. Because appellant does not cite this Court to any evidence in the record of the substance of any news coverage, we conclude he has not shown the trial court abused its discretion in denying his motion to change venue. We resolve appellant's first supplemental issue against him. In his second supplemental issue, appellant contends the trial court erred in stacking his sentence onto a sentence in another case. According to appellant, the trial court could not stack the sentence because the other case was on appeal and was not final. The court of criminal appeals has held that a trial court may stack a sentence even though a conviction is on appeal. See Garcia v. State, 537 S.W.2d 930, 936 (Tex. 1976); Hamm v. State, 513 S.W.2d 85, 86 (Tex. Crim. App. 1974). We resolve this issue against appellant. We affirm the trial court's judgments.