Opinion
No. 4-05-00540-CR
Delivered and Filed: April 5, 2006. DO NOT PUBLISH.
Appeal from the 49th Judicial District Court, Webb County, Texas, Trial Court No. 2004-Crm-000294-D1, Honorable Manuel R. Flores, Judge Presiding. Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee B. MARION, Justice, Rebecca SIMMONS, Justice.
MEMORANDUM OPINION
A jury found Appellant, Roberto Carlos Rincon, guilty of aggravated assault with a deadly weapon and sentenced Rincon to ten years confinement. In five points of error, Rincon asserts the trial court erred in (1) denying his motion for continuance to investigate newly discovered evidence; (2) refusing to allow the impeachment of the complainant with a prior conviction and with an audio taped statement; (3) allowing Sergeant Lozano to testify about bullet fragment analysis despite not being offered as an expert; and (4) allowing the prosecutor to urge the jury to nullify the law on probation. Because none of Rincon's points of error present reversible error, we affirm the trial court's judgment. The complainant, Andres Guardiola, testified that on April 5, 2003 at about 4:30 p.m. he was sitting in his front yard when a tan or mustard colored vehicle approached his residence. Guardiola also stated that he saw at least three individuals in the vehicle. Guardiola testified that he was approximately ten feet from the vehicle when the driver exited, pointed a firearm at him, and shot him twice. Guardiola identified Rincon as the shooter from a photo lineup. Apparently, Rincon's uncle, Alfonso Salinas and Guardiola had an ongoing feud. Rincon was indicted on aggravated assault charges.
Motion for continuance
On Monday, May 16, 2005, the first day of trial, Rincon filed a motion for continuance requesting additional time to investigate based on recent knowledge that Alfonso Salinas, Rincon's uncle and also allegedly involved in the charged offense, was going to trial in federal court for possession of a firearm by a prohibited person. Rincon asserted the new information was significant because his defense was that Salinas was the shooter and that a continuance would provide more time to investigate the likelihood that the weapon Salinas is charged with possessing, in federal court, was the same weapon used in this case. In order to properly preserve error, Rincon needed to file a sworn written motion. Montoya v. State, 810 S.W.2d 160, 176 (Tex.Crim.App. 1989); see also Rodriguez v. State, 903 S.W.2d 405, 408 (Tex.App.-Texarkana 1995, pet. ref'd) (holding "[w]hen a defendant's motion for continuance is not sworn by a person having personal knowledge of the facts relied on for the continuance, nothing is presented for review"). Here, Rincon failed to properly preserve error for review because he did not file a sworn motion for continuance. However, even if Rincon preserved error, we overrule this point of error because he has not shown how the trial court's denial of his motion for continuance amounts to an abuse of discretion.A. Standard of Review
A motion for continuance is a matter left to the sound discretion of the trial court. Janecka v. State, 937 S.W.2d 456, 468 (Tex.Crim.App. 1996). We will reverse a trial court's decision to deny a motion for continuance only if the decision was a clear abuse of discretion. Id. In order to establish an abuse of discretion, it must be shown that the denial of the motion actually prejudiced the defendant. Id. B. Analysis Rincon's claim of prejudice rests on his statement that "[h]ad the defendant been allowed to further investigate the weapon possessed by Salinas, and the circumstances of his possession, it would have impacted the outcome of this trial." Rincon seems to presuppose that it was the same firearm despite the fact that the State at the hearing on the motion stated that a ballistic's report on the slug recovered from Guardiola determined that the potential makes of the weapon used in this case in no way matched the firearm in question in the federal case. As a result, the trial court could have reasonably concluded there was no correlation between the firearm used to shoot Guardiola and the one Salinas was charged with possessing. See Gutierrez v. State, 945 S.W.2d 287, 290 (Tex.App.-San Antonio 1997, no pet.) (stating a trial court does not abuse its discretion as long as a "reasonable view of the record could support [its] conclusion"). Based on this record, it was reasonable for the trial court to conclude that a further investigation would be inconsequential. Moreover, even if the weapon used to shoot the complainant was a previous weapon possessed by Salinas, that does not negate that Rincon was, potentially, the shooter. The complainant also testified that there were three occupants in the vehicle, one of which could have been Salinas. The vehicle described by the complainant matched the vehicle driven by Rincon. The fact that Salinas possessed a firearm at some earlier point in time may not help exonerate Rincon but rather, considering the relationship with Salinas, establish that Rincon had access to the firearm. Additionally, the lapse of time from when Rincon or his counsel should have known of the pending federal charges against Salinas and when the motion for a continuance was filed influenced the trial court's decision. Apparently, Rincon was aware that Salinas' federal charges had been pending for some time. While Rincon's counsel was not involved from the inception of this case, at least six months transpired since his involvement before filing the motion for continuance. It was not unreasonable, arbitrary, or an erroneous application of the law for the trial court to take the delay or lack of due diligence by Rincon into account in denying the motion for continuance. See Lewis v. State, 911 S.W.2d 1, 7 (Tex.Crim.App. 1995) (stating appellate courts do not substitute their judgment for that of the trial court in determining an abuse of discretion rather they decide whether the court's decision was unreasonable or arbitrary). As such, we are unable to conclude that the trial court abused its discretion in denying Rincon's motion for continuance. Accordingly, we overrule Rincon's first point of error.Evidentiary Issues
In his second and third point of error, Rincon asserts that the trial court committed reversible error in refusing to allow Rincon to impeach the complainant with a prior conviction of a crime of moral turpitude and with complainant's audio taped statement. In his fourth point of error, Rincon claims the trial court erred in allowing the testimony of Sergeant Lozano over bullet fragment analysis. We disagree with Rincon's contentions on each of these evidentiary issues.A. Standard of Review
We review a trial court's ruling to admit or exclude evidence for an abuse of discretion. Rachal v. State, 917 S.W.2d 799, 816 (Tex.Crim.App. 1996); Theus v. State, 845 S.W.2d 874, 881 (Tex.Crim.App. 1992). A trial court does not abuse its discretion if its "ruling was at least within the zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex.Crim.App. 1991). The proponent of the evidence has the burden to demonstrate the admissibility of the evidence. Theus, 845 S.W.2d at 880.B. Impeachment with Prior Conviction
At trial, defense counsel attempted to impeach the complainant with his previous conviction of violating a protective order — a Class A misdemeanor. Texas Rule of Evidence 609(a) allows impeachment of a witness with a prior conviction if the prior conviction involved a felony or a crime of moral turpitude, and the court determines the probative value of the evidence outweighs its prejudicial effect. Tex. R. Evid. 609. Here the prior conviction was not a felony, thus we must determine whether the conviction for violating a protective order is a crime of moral turpitude and if so, if the probative value of the evidence outweighs its prejudicial effect. Moral turpitude is: (1) the quality of a crime involving grave infringement of the moral sentiment of the community as distinguished from mala prohibita; (2) conduct that is base, vile, or depraved; and (3) something that is inherently immoral or dishonest. Ludwig v. State, 969 S.W.2d 22, 28 (Tex.App.-Fort Worth 1998, pet. ref'd). In Ludwig v. State, the court addressed whether the misdemeanor offense of violating a protective order is a crime of moral turpitude. See id. Recognizing that a protective order can have many different applications and restrictions, the court stated "[w]e hereby . . . adopt a narrow rule that a conviction for the misdemeanor offense of violation of a protective order will be considered a crime of moral turpitude when the underlying, uncharged offense is one of family violence or the direct threat of family violence." Id. Under Rule 609 the evidence of a conviction of a crime of moral turpitude, that has greater probative value than prejudicial effect, would be admitted "if elicited from [the convicted individual] or established by public record." Tex. R. Evid. 609. In the present case, unlike Ludwig, the record is unclear as to the underlying act supporting the complainant's conviction for violating a protective order. See Ludwig, 969 S.W.2d at 30. At best, defense counsel elicited testimony from the complainant that he allegedly committed family violence but the complainant never admitted to the offense nor was it established by public record. As a result, Rincon, as the proponent of the evidence, failed to establish the proper predicate under Rule 609 and Ludwig. Alternatively, and despite the State's objection, Rincon also failed to meet his burden under Rule 609 because he did not argue at trial, much less establish, how the probative value of the complainant's conviction of a protective order outweighs its prejudicial effect. Ludwig, 969 S.W.2d at 30 (asserting "[a] trial court's ruling will be affirmed if it is correct under any legal theory"). Having failed to establish the proper predicate under Rule 609, we conclude that the trial court did not abuse its discretion in refusing to admit the complainant's prior conviction for violating a protective order. We overrule Rincon's second point of error.C. Impeachment with Audio Taped Statement
Rincon contends that Sergeant Lozano's audio recorded statement of the complainant shortly after the shooting serves to illustrate the complainant's demeanor in an effort to attack his credibility. Yet, Rincon argues that the audio taped statement contradicts the characterizations of Sergeant Lozano — that the complainant was jumpy and excited — by showing that the complainant was calm and collected. It appears that Rincon seeks to challenge the characterizations of Lozano with what he perceives the complainant's recorded statement would show. Rincon, however, fails to provide any authority that would support the proposition that audio recordings of a witness prior to trial can be used to impeach a different witness at trial. Cf. Tex. R. Evid. 613(a) (allowing impeachment by a prior statement of a witness that is inconsistent with his or her trial testimony) (emphasis added). Moreover, Rincon's point of error on appeal is that the trial court erred in refusing to allow him to impeach the complainant, not Lozano, with the complainant's audio taped statement. However, the record reveals the trial court did allow defense counsel to impeach the complainant as long as he established the proper predicate. In fact, the trial court overruled the State's objection and stated "you can ask about it[,] a prior inconsistent statement, and if he admits making it, that's the end of the inquiry. If he denies it, then you can introduce it under the rules. . . ." Further the trial court instructed defense counsel to ask the questions outside the presence of the jury. Defense counsel obliged and the complainant answered the question in the affirmative. Thereafter defense counsel did not attempt to introduce the audio taped statement as a means of impeaching the complainant. Based on this record, and as much as we can derive from Rincon's arguments, we are unable to conclude that the trial court abused its discretion in requiring Rincon to first establish a prior inconsistent statement before attempting to introduce the audio taped statements. Lopez v. State, 86 S.W.3d 228, 230 (Tex.Crim.App. 2002) (requiring a prior inconsistent statement as a proper predicate under Rule 613(a)). Accordingly, we overrule Rincon's third point of error.D. Lozano's Testimony
In his fourth point of error Rincon claims the trial court erred in allowing Sergeant Lozano to testify about bullet fragment analysis as an unqualified expert and when it was impermissible testimonial hearsay. Rincon further claims "[b]ecause this evidence was admitted, [through] an unqualified witness and as hearsay, the defendant was again denied his right to cross-examine a witness who `testified' against him." We disagree. Rincon challenges the trial court's ruling during the State's direct examination of Sergeant Lozano:Q. Can you finish answering the question?
A. Yeah, what we do is send those bullets over, and they can determine ballistics, and they can show us particular make and model of the weapon that was used on a particular case.
Q. What kind of make and model were you looking for?
A. It was determined that they were fired from a Smith Wesson.
[Defense Counsel]: Objection your honor. He's not an expert. He's not the one performing the tests. They're getting into areas that he's not qualified, he hasn't been qualified, and to conclusions; and therefore, we would object in that he's not qualified to testify about these matters.
The Court: You're objecting to that question on the basis of qualifications?
[Defense Counsel]: Yes, and in the report that they're alluding to, Your Honor.
The Court: Well, what's the objection to it?
[Defense Counsel]: Judge, he's not qualified as an expert in ballistics.
[State]: The question was, what kind of weapon were you looking for, it has nothing to do with being an expert.
The Court: The objection is overruled.Even assuming Lozano's testimony, as to what the ballistics report concluded, was subject to Rule of Evidence 702 any resulting error was harmless. See Tex. R. Evid. 702 (governing admissibility of expert testimony). Further, any error as a result of impermissible hearsay or on the basis of a Confrontation Clause violation was waived. Assuming the trial court committed error in overruling the defense's objection to Lozano's testimony, we must now determine whether this error is reversible. Tex.R.App.P. 44.2; see Garza v. State, 963 S.W.2d 926, 930 (Tex.App.-San Antonio 1998, no pet.). Because this error was an evidentiary matter, Rule 44.2(b) applies. Id. Rule 44.2(b) requires us to examine error in relation to the entire proceeding and determine whether it had a "substantial and injurious effect or influence in determining the jury's verdict." Id. Here Lozano's testimony was that someone determined that the make of the gun used to shoot the complainant was a Smith Wesson. Rincon on appeal claims, without explanation, that the admission of Lozano's testimony prejudiced his defense because it supported the State's version of who shot the complainant. We are unpersuaded that the focus of Lozano's investigation over a Smith Wesson firearm had a substantial and injurious effect or influence in determining the jury's verdict. The jury had other evidence that Rincon shot the complainant. The complainant testified Rincon was the shooter. The complainant's description of the vehicle in which the shooter exited matched Rincon's vehicle. Moreover, there was never a firearm recovered to establish any connection to Rincon. Consequently, after examining the record as a whole, we have a fair assurance that the error did not influence the jury. Id. The trial court denied Rincon's sole objection that Lozano was an unqualified expert and could not testify as to the bullet fragment analysis in the ballistics report. To the extent that Lozano's testimony was impermissible hearsay, any error in its admission was not preserved. Tex.R.App.P. 33.1.; see Reyna v. State, 168 S.W.3d 173, 177 (Tex.Crim.App. 2005) (stating the issue as to preservation of error is "`whether the complaining party on appeal brought to the trial court's attention the very complaint that [the] party is now making on appeal'") (internal citations omitted). Rincon also complains that he was denied his constitutional right to confront and cross-examine witnesses used against him. Similarly, however, because Rincon did not object on the basis of the Confrontation Clause any error limiting Rincon's right to cross-examine a witness is not preserved. See Reyna, 168 S.W.3d at 177 (holding that appellant must preserve error at trial on Confrontation Clause grounds in order to bring claim on appeal). Rincon's fourth point of error is overruled. Prosecution's Argument In his final point of error, Rincon asserts that the prosecutor's comment that probation is not punishment constitutes reversible error. Proper jury argument must fall into one of four general categories: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) response to argument of opposing counsel; and (4) plea for law enforcement. See Guidry v. State, 9 S.W.3d 133, 154 (Tex.Crim.App. 1999). However, even arguments beyond the bounds of these four areas will not constitute reversible error unless, taking the record as a whole, the argument is extreme or manifestly improper, violates a mandatory statute, or injects new facts harmful to the accused into the trial proceeding. Westbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). A misstatement of the law that is "clearly calculated to inflame the minds of the jury and of such character as to suggest the impossibility of withdrawing the impression from their minds" amounts to reversible error. Grant v. State, 738 S.W.2d 309, 311 (Tex.App.-Houston [1st Dist.] 1987, pet. ref'd). During the State's closing argument the prosecutor made the following comments:
So, in order to qualify for probation, defense counsel mus[t] prove that he's never been convicted of a felony offense. They've raised it. They raised the issue, but it really doesn't matter because it's two to twenty. Twenty is the maximum. That's what it should be. He shot the man twice at his house with no regards as to who was around. What did he hit? Probation? It is a joke. It really is because it's not punishment. All he is required to do [while on] probation is whatever what everybody has to do every day.In Choice v. State, this Court addressed a similar, if not identical, argument. No. 04-95-00331-CR, 1996 WL 148154, at *3 (Tex.App.-San Antonio 1996, no pet.) In Choice, the prosecutor made the following comments in closing argument:
When you go back and you deliberate you get to read what the terms and conditions are of probation, and those terms and conditions say, "Look, now that you've been caught, now that you've been prosecuted, now that you've been convicted, you now have a set of rules that says `Won't you please behave like any good citizen in Dallas County?" That's not punishment, and it [is] not rehabilitation either. It's just act like a decent human being, and that is not enough for what this man has inflicted on these people.Id. While in Choice this Court noted that the appellant failed to preserve error, this court held that the arguments did not amount to egregious or fundamental error "because they were proper as either a response to appellant's request for probation, or as a plea for law enforcement." Id. at 3. Although Choice is an unpublished opinion we conclude its rationale is equally pertinent. The prosecutor in Choice was responding with comments that probation was inadequate considering the circumstances of the offense. Id. Similarly, in the present case, the prosecutor was responding to Rincon's request for probation as inappropriate considering the circumstances. Consequently, we are unable to conclude that this type of argument constituted reversible error. Rincon's fifth point of error is overruled.