Opinion
No. 05-04-00427-CR
Opinion Filed July 15, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F03-48572-RQ. Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
OPINION
Jose Manuel Rivera appeals his jury conviction for the murder of Larry Marquez. In three points of error, Rivera complains the trial judge erred in overruling his objection to the admission of a picture of Marquez's children, to the photographic line-up shown to witness Amalia Gonzalez, and to the State's treatment of witness Tony Contreras as a hostile witness. Finding no error, we affirm.
Background
Marquez died after being shot five times in the head with a .22-caliber handgun following an apparent dispute outside a local nightclub. Dallas police officers identified Rivera as a suspect after interviewing Contreras, but did not arrest him until after Gonzalez provided them a statement and told them she had witnessed Rivera, whom she knew, shoot Marquez "cold-hearted." At trial, Gonzalez testified she was standing outside the club talking to her boyfriend when she saw Marquez walking towards a pay phone. Marquez "threw gang signs" and said something Gonzalez could not hear. Gonzalez then saw Rivera approach Marquez from behind, shoot at him several times, and drive away. Gonzalez testified she provided this information to officers during an interview at her home and also testified that she had been shown a line-up from which she had identified Rivera. Detective Robert Quirk testified he and his partner interviewed Contreras because Contreras fit the description given by one of the witnesses and was "known to hang out" near the pay phone where Marquez was murdered. Contreras told the officers he was at the club the night of the murder and, as he was leaving, saw Rivera. The following day, Rivera visited with Contreras and told him he had "shot a guy." Quirk interviewed Rivera and with Rivera's consent, searched his house. During the search, Quirk found two magazines for a .22-caliber handgun, which Rivera acknowledged were his. Rivera also acknowledged owning guns but told Quirk his .22-caliber handgun had been stolen two months before the murder. Following Rivera's interview, Quirk and his partner interviewed Gonzalez. Quirk testified, over objection, that after Gonzalez told them what she had witnessed, he showed her a six-picture line-up to confirm Gonzalez's identification of Rivera as the shooter. Contreras testified he and Rivera were childhood friends. Through leading questions, and over Rivera's repeated objections, Contreras confirmed that he had told Quirk and his partner that he had seen Rivera at the club the night of the murder and Rivera had admitted to him that he had "shot a guy" at the club. Contreras also testified that he had spoken to the prosecutor and a Dallas County investigator a week before trial and told them that his statements to the officers were false. Contreras then testified that in fact, what he had told the officers was false, that he had never seen Rivera at the club, and did not know anything about the murder. Rivera did not testify and did not call any witnesses.Admission of Picture of Marquez's Sons
In his first point of error, Rivera complains about the admission, over his objection, of a picture of Marquez's four children, admitted after Marquez's wife had given, without objection, brief background information about Marquez-how they met, where he worked, and the names and ages of their children. Marquez argues that the picture was admitted "solely to inflame and enrage the jury" and should have been excluded under Texas Rule of Evidence 403. We disagree. We review a trial judge's decision to admit or exclude evidence under an abuse of discretion standard and will not disturb the ruling as long as it is within the zone of reasonable disagreement. Burden v. State, 55 S.W.3d 608, 615 (Tex.Crim.App. 2001). Under rule of evidence 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or capacity to mislead the jury. Tex. R. Evid. 403. In determining whether to exclude evidence under rule 403, the trial court may consider a number of factors including how probative the evidence is, the potential for the evidence to impress the jury in some irrational but nevertheless indelible way, the time the proponent needs to develop the evidence, and the proponent's need for the evidence. Reese v. State, 33 S.W.3d 238, 240-41 (Tex.Crim.App. 2000). Applying these factors to this case, we conclude that although the probative value of and need for the picture may have been slight, the danger of unfair prejudice was even less. The picture is nothing more than a typical snapshot of smiling children. No endearing description is written on it nor is there anything else which would lead the jury to decide the case on an emotional basis rather than on the other evidence introduced at trial. We overrule Rivera's first point of error.Photographic Line-Up
In his second point of error, Rivera argues the trial judge erred in overruling his objection, during Quirk's testimony, to the photographic line-up viewed by Gonzalez. Relevant to this point, the record reflects Rivera objected after Quirk testified that he did not audio-record or video-record the showing of the line-up, the showing was done at Gonzalez's apartment, and he and another officer were present. However, Rivera's objection was too late and preserved no error because Quirk's testimony came after Gonzalez herself had testified similarly about the line-up and without objection. Jones v. State, 111 S.W.3d 600, 606 (Tex.App.-Dallas 2003, pet. ref'd) (error waived where evidence similar to objected-to evidence admitted elsewhere without objection). We overrule Rivera's second point of error.Treatment of Contreras as Hostile Witness
In his final point of error, Rivera complains about the State's treatment of Contreras as a hostile witness. Specifically, Rivera complains about the following portion of the prosecutor's direct examination of Contreras[PROSECUTOR]: These things you told the jurors that you told [the officers], are those things true?CONTRERAS: No. [PROSECUTOR]: So now you are in here on the —
[DEFENSE COUNSEL]: Objection, Your Honor. She called him. He's her witness. She can't challenge his credibility and she can't do what she's doing. She didn't call him as a hostile witness or ask the court's permission to cross-examine him. She cannot attack him after she called him. She's vouching for his testimony.
[PROSECUTOR]: Your Honor, I can impeach my own witness.
[DEFENSE COUNSEL]: She didn't ask for permission to take a hostile witness, Your Honor.[JUDGE]: Overruled. Go ahead.
Rivera equates the State's examination of Contreras through leading questions as treatment of Contreras as a hostile witness and argues, in a conclusory fashion and without substantive analysis, that the trial judge erred in overruling his objection because the State's use of leading questions, without the judge's prior approval, resulted in the State's usurpation of the judge's power under Texas Rule of Evidence 611(a). Additionally, Rivera argues the judge erred in overruling his objection because" the prosecutor's impeachment of Contreras with the statements he had given to the officers violated the Confrontation Clause of the Sixth Amendment to the United States Constitution." Neither complaint, however, is properly before us.To have preserved his Confrontation Clause complaint for our review, Rivera needed to have asserted an objection on that basis at trial. See Paredes v. State, 129 S.W.3d 530, 535 (Tex.Crim.App. 2004) (Confrontation Clause complaint not preserved where objection on that basis not made at trial). His failure to do so waived any error. Id. And, his failure to provide any substantive analysis concerning his rule 611(a) complaint has also resulted in waiver of any error on that ground. See Tex.R.App.P. 38.1(h) (requiring appellate brief contain clear and concise argument for contentions made); Lagrone v. State, 942 S.W.2d 602, 614 (Tex.Crim.App. 1997) (concluding court could not adequately evaluate issue without substantive argument); Billy v. State, 77 S.W.3d 427, 429 (Tex.App.-Dallas 2002, pet. ref'd) (concluding lack of substantive legal argument in support of issue precluded appellate review). Under rule 611(a), a trial judge is empowered to exercise reasonable control over the mode and order of questioning witnesses so as to (1) make the interrogation and presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. Tex. R. Evid. 611(a). Rivera argues the State usurped the judge's power but does not explain how this resulted in the judge's failure to "exercise reasonable control" over the examination of Contreras nor how it impeded the ascertainment of truth, resulted in a waste of time, or subjected Contreras to harassment or undue embarrassment. As such, his point on this ground is inadequately briefed. We overrule Rivera's third point of error. We affirm the trial court's judgment.