Opinion
08-21-00136-CR
01-24-2023
VICTOR OMAR TORRES, Appellant, v. THE STATE OF TEXAS, Appellee.
Do Not Publish
Appeal from the 394th Judicial District Court of Brewster County, Texas (TC# CR-04829)
Before Rodriguez, C.J., Soto, J., Marion, C.J. (Ret.)
MEMORANDUM OPINION
LISA J. SOTO, JUSTICE
A jury found Appellant Victor Omar Torres guilty of continuous violence against the family and assessed seven years' imprisonment. Appellant raises two issues challenging his conviction: (1) that the trial court abandoned its role of neutral arbiter when it admitted evidence of extraneous offenses Appellant committed against the victim and his ex-wife and (2) that the trial court misapplied the "first-aggressor" rule in admitting evidence of extraneous offenses against his ex-wife. We disagree with Appellant and affirm the trial court's ruling.
I. Judicial Impropriety
Appellant first argues that the trial court abandoned its role as neutral arbiter by offering its own theories of admissibility regarding the extraneous offenses, essentially assisting the State and relieving the State of its burden to argue the grounds for its admissibility.
A. Factual and Procedural Background
i. First Incident
a. Garcia's Version of Events
At trial, the complaining witness, Isabell Garcia, testified as follows. Appellant is her ex-boyfriend. Garcia began dating Appellant at the end of 2018 and moved into an apartment with him in Alpine, Texas in February 2019. On April 3, 2019, Garcia and Appellant got into a verbal argument that escalated when Appellant threw things in the apartment, yelled at Garcia, and shoved her to the ground. Garcia attempted to leave the apartment, but Appellant grabbed her and threw her back inside. At some point, Appellant choked Garcia with his hands, causing pain to her neck, head, and limbs. After choking Garcia, Appellant became upset and consumed a bottle of pills. Concerned for him, Garcia got Appellant into her car and attempted to drive him to the hospital. But when she told Appellant she was driving him to the hospital, he became distraught, left the car, and ran away toward a nearby golf course. Garcia was unable to locate Appellant, who eventually reappeared several days later.
In support of Garcia's testimony, the State presented photographs showing red abrasions on Garcia's neck. The State also introduced photographs of Garcia's hand, wrist, knees, and legs, which also contained multiple bruises, cuts, and abrasions that Garcia claimed Appellant caused during the assault. Garcia did not attempt to contact law enforcement because she was afraid Appellant would retaliate against her. Garcia denied that she consented to Appellant causing injuries while they were engaged in a sexual game and also denied that her dog caused her injuries.
The day after the assault, another person contacted law enforcement, and Deputy Chopelas was dispatched to take additional photographs of Garcia's injuries. When Chopelas later supervised Appellant's arrest, he did not note the presence of any injuries on Appellant's face. Garcia told Chopelas that she did not want to prosecute Appellant for the assault. Garcia also wrote a "letter of retraction" and an affidavit of non-prosecution, stating that she did not want to pursue charges against Appellant. Garcia stated that she wrote the letter because she was pressured by two friends and because at the time she thought that she loved Appellant and thought that she could "erase . . . his aggressiveness" by being there for him.
Garcia received a protective order against Appellant on the basis of the April 3 events and later unsuccessfully attempted to have the order rescinded. Garcia claimed that Appellant help her draft the non-prosecution affidavit. Garcia desired to prosecute the case against Appellant at the time of trial.
b. Appellant's Version of the Events
Appellant testified to a different version of events. Appellant stated that after they had been dating for several months, Garcia began abusing Xanax and alcohol. On the night of the April 3 incident, Garcia had consumed most of a bottle of wine. That night, Appellant checked Garcia's phone and saw "promiscuous" messages between Garcia and several other men. Appellant confronted Garcia with the messages, and when Garcia became aggressive, Appellant stated that he was going to leave for the night. As Appellant attempted to leave, Garcia struck him in the face with her hand. Appellant grabbed his DJ equipment and attempted to leave the apartment, but Garcia knocked the equipment out of his hands, causing it to fall and break. Appellant went inside the apartment to get more of his possessions, and as Garcia was trying to pull his clothes out of his hands, she fell to the ground. To exact revenge against Garcia for destroying his DJ equipment, Appellant grabbed her makeup bag and dumped its contents into an outside septic tank. Garcia was enraged and attempted to strike Appellant with what appeared to be a screwdriver, and they struggled over the screwdriver and fell to the pavement. When Appellant got into his car, Garcia attempted to enter the car as well and hit her head on the door as Appellant closed it, knocking herself to the ground.
After the car door struck her, Appellant picked Garcia up and carried her into the apartment to see if she was injured. Once inside, the argument began again and Garcia punched holes in the walls and broke various items inside. Garcia eventually calmed down and she and Appellant had sexual intercourse that resulted in "hickeys" on Garcia's neck.
The next morning, Appellant and Garcia began arguing again over the destroyed possessions, and Appellant became depressed and consumed a bottle of trazodone pills, which was potentially life-threatening. At some point, Appellant lost consciousness until they came to the golf course in Garcia's car, where he exited the vehicle, ran away, and climbed a tree. Emergency services eventually arrived, evaluated Appellant, and released him to his father.
Appellant denied helping prepare Garcia's retraction letter and non-prosecution affidavit. Appellant asserted that Garcia sustained most of her injuries from falling on the pavement, through acts associated with their "rambunctious" sex life, or from Garcia's dog; he denied having caused those injuries by striking or choking her with his hands and fists.
ii. Second Incident
a. Garcia's Version of the Events
On September 26, 2019, several months later, Garcia got into another argument with Appellant. During the argument, Garcia attempted to walk away from Appellant when he struck her eye with his hand, causing Garcia pain. Garcia took several photographs of her face after the assault, which showed a bruise on her left eye area and a burst blood vessel in her eye. Appellant also caused Garcia pain and multiple bruises to her arm by grabbing it during the assault. Garcia did not consent to Appellant to causing these injuries, and again she denied that she consented to Appellant causing the injuries during a sexual game.
b. Appellant's Version of the Events
Regarding the September 2019 incident, Appellant testified that he and Garcia started living together again after the protective order expired in June 2019. After an uneventful period from July into August, Appellant and Garcia took a break for approximately ten days due to Garcia's aggressiveness and drinking issues. Appellant and Garcia moved back in together in late August 2019. On September 26, 2019, Appellant was called to work outside of the town but ran out of gas as he drove to the work site. Appellant called Garcia and asked her to come looking for him. Garcia did not appear, and Appellant caught a ride into town with a passerby. In town, Appellant then got a ride with his father to Appellant's apartment, but the front door was locked. Appellant began knocking on the door for Garcia to let him in. After ten minutes, Garcia opened the door and let Appellant in. Garcia was intoxicated; two empty wine bottles were on the nightstand near the bed. When Garcia offered Appellant a drink, he declined and started emptying out the last remnants of wine from the bottles. In response, Garcia, who had her keys in her hand, punched Appellant twice in the face. Appellant attempted to leave the apartment, but Garcia picked up a wine bottle and threw it at him, striking him in the head. Garcia began apologizing and attempted to stop Appellant from leaving, but Appellant left and walked toward his shop. Garcia began texting Appellant and telling him that she would leave him if he did not reply to her texts, but Appellant did not respond.
Appellant eventually returned to the apartment after midnight and noticed damage to the apartment and various items in the apartment that he had not caused. Garcia reappeared later that day, and again they argued about Garcia's infidelity. Garcia claimed that she had been sexually assaulted by three men at a gas station during the previous night, causing bruises on her arms, thighs, and ankle. Appellant pretended to call the gas station to verify Garcia's story, but Garcia recanted her story and admitted to having consensual sex with another man. Appellant began to look through the messages on her cell phone, and Garcia jumped on his back and bit him on the neck. Appellant threw his head and hand back to get her off of him, and she fell to the ground after he "may have" hit her left eye with his head or hand. Appellant denied that he intentionally, knowingly, or recklessly struck Garcia, and stated that if he had, it was in self-defense because she had bitten him first.
Appellant left the apartment and did not call the police because he was afraid that he might be arrested. As Appellant walked into a nearby alley, Garcia started her car and accelerated toward him. Appellant avoided Garcia's vehicle and Garcia drove away. Appellant walked back to the apartment and began packing his belongings when Garcia reappeared and started arguing with him again. Appellant grabbed Garcia's phone as she began typing a text message, and soon thereafter a sheriff's deputy appeared. Garcia jumped on Appellant's back again and started hitting him, but she stopped when Appellant told her that a sheriff's deputy was there. Deputy Villa asked Appellant if he wanted to have Garcia arrested; Appellant declined. When Villa noticed a half-full wine bottle in Garcia's vehicle, Appellant claimed that it was his to prevent Garcia from being arrested. Garcia then left the apartment.
iii. Trial and Verdict
Following Appellant's direct-examination testimony, the State introduced evidence of extraneous offenses Appellant committed against Garcia and Alexandra Baeza, Appellant's ex-wife, which we recount in greater detail below. The jury found Appellant guilty of the charged offense and assessed punishment of seven years' imprisonment. His timely appeal followed. Appellant raises two issues challenging his conviction: (1) that the trial court abandoned its role of neutral arbiter when it admitted evidence of extraneous offenses Appellant committed against the victim and his ex-wife and (2) that the trial court misapplied the "first-aggressor" rule in admitting evidence of extraneous offenses against Baeza. We address each issue in turn.
B. Standard of Review and Applicable Law
Due process requires a neutral and detached body or officer to preside over a judicial proceeding. Brumit v. State, 206 S.W.3d 639, 645 (Tex. Crim. App. 2006). A defendant has a right to an impartial judge during trial. Segovia v. State, 543 S.W.3d 497, 503 (Tex. App.- Houston [14th Dist.] 2018, no pet.). To that end, a judge should not act as an advocate or adversary for any party. Johnson v. State, 452 S.W.3d 398, 405 (Tex. App.- Amarillo 2014, pet. ref'd). To reverse a judgment on the basis of a trial judge's improper conduct or comments, an appellant must show both that judicial impropriety was in fact committed and that the impropriety resulted in probable prejudice to the complaining party. Id. A trial judge's actions are presumed to be correct absent a clear showing of bias. Brumit, 206 S.W.3d at 645. A reviewing court examines the entire record in conducting this review. Id.
C. Appellant Failed to Show Judicial Impropriety
On appeal, Appellant argues that the trial court abandoned its role as neutral arbiter by offering its own theories of admissibility regarding the extraneous offenses, essentially assisting the State and relieving the State of its burden to argue the grounds for its admissibility. While the record does not indicate that the State raised the theory of admissibility based on the first-aggressor rule before the trial court did so, it was the State-not the trial court-that first argued a specific basis for admitting the evidence. Specifically, the prosecutor argued that the July 2019 extraneous offenses against Garcia were admissible because Appellant had opened the door to its admission through his direct-examination testimony that the relationship was peaceful at that time. "Opening the door" by introducing evidence that leaves a false impression with the jury can be a valid basis for admitting extraneous-offense evidence to rebut the false impression. See Houston v. State, 208 S.W.3d 585, 591 (Tex. App.-Austin 2006, no pet.) (recognizing that a defendant who "opens the door" to otherwise inadmissible evidence by leaving a false impression with the jury allows the State to introduce evidence of an extraneous offense to correct the false impression).
Moreover, the record does not suggest that the trial court attempted to relieve the State of its burden to argue why the extraneous offenses were admissible; rather, trial court correctly iterated that the State had the burden to demonstrate what the evidence would show. See White v. State, 549 S.W.3d 146, 151-52 (Tex. Crim. App. 2018) (stating that a party seeking to admit evidence generally has the burden to prove that the evidence is admissible). And after Appellant objected to the trial court's actions, the court asked the State to provide a reason as to how Appellant had opened the door to the admission of the extraneous offenses from July 2019, which the State then explained. Because the State first articulated its own theory of admissibility and the trial court correctly placed the burden on the State to satisfy the grounds therefore, Appellant's claim of judicial impropriety or bias in admitting the July 2019 extraneous offenses fails.
Regarding the September 20, 2019, extraneous offense against Garcia and the extraneous offenses against Baeza, Appellant offers no specific argument for how the trial court demonstrated bias or judicial impropriety by admitting evidence of those offenses. Instead, he only argues that the admission of those extraneous offenses was prejudicial. Accordingly, this portion of his claim fails. See Trung The Luu v. State, 440 S.W.3d 123, 129 (Tex. App.-Houston [14th Dist.] 2013, no pet.) (holding that a defendant who did not argue the merits of how the trial court's rulings purportedly showed a bias did not satisfy his appellate burden to establish judicial impropriety or prejudice through the trial court's alleged attempt to assist the State in admitting evidence).
Appellant's first issue is overruled.
II. Extraneous offenses
Appellant next argues that the trial court abused its discretion by admitting extraneous-offense evidence concerning his assaults against his ex-wife, Alexandra Baeza.
A. Factual Background
i. Pre-Testimony Discussions
Before jury selection began, the parties and the trial court discussed Appellant's motion in limine requesting the State to refrain from discussing Appellant's prior criminal history if he decided to testify. The State argued that if Appellant testified during the guilt-innocence phase of trial, he could be subject to cross-examination on his criminal history, but the prosecutor would first ask to discuss the matter outside the jury's presence before eliciting testimony that could violate the motion. The trial court granted the motion only to the extent it would require the parties to address the evidence at the bench prior to eliciting it before the jury.
Prior to cross-examining Appellant, the prosecutor announced his intent to present evidence of Appellant's July 2019 extraneous offenses against Garcia, which he argued were admissible because Appellant had opened the door to the same through his direct-examination testimony that his relationship with Garcia was peaceful during that time period. The trial court acknowledged the possibility of admitting the extraneous offenses under the State's proffered theory as well as "the law on first aggressor" because Appellant had introduced evidence that Garcia was the first aggressor during the April and September incidents. The trial court stated that because Appellant had raised the issue of first aggressor, the State could counter Appellant's evidence with specific acts of aggressive violence by Appellant during the allegedly peaceful period of time in the relationship. The State clarified its intent to introduce evidence of a violent incident between Appellant and Garcia that occurred on July 20, 2019. The trial court responded that for the evidence to be admissible without violating the motion in limine, it had to be evidence contradicting Appellant's testimony that July 2019 was a peaceful time, or it had to "go to a specific act of violence that [the State] allege[d] was committed by [Appellant]." The trial court put the burden on the State to show that the evidence fell into either of those categories.
While still outside the jury's presence, the State proffered a series of Appellant's other extraneous offenses, including extraneous offenses against Baeza. Appellant objected to not receiving proper notice of the State's intent to offer the Baeza offenses, and the trial court overruled the objection. Appellant also argued that the State had not offered a basis to admit the offenses under Tex. R. Evid. 404(b)(2), but the trial court responded that it had already decided to admit the evidence and did not ask the State to provide a non-propensity purpose to admit the offenses.
ii. Offenses Against Baeza
The State introduced Baeza's testimony as follows. In March 2012, Appellant assaulted her while they were still married. During this incident, Appellant became angry at Baeza while they were at a dance hall. When Baeza got into their vehicle, Appellant began hitting the window and shouting at Baeza. After Appellant got in the vehicle and drove away, he began pulling Baeza's head and hair. Baeza tried to get into the backseat, and Appellant began choking Baeza to the point she could not breathe. Baeza told Appellant that she did not want to be with him anymore, and Appellant threatened to kill her. Appellant then drove for a while, pulled over, and choked Baeza again.
On November 22, 2012, Baeza caught Appellant consuming narcotics in their home, and she attempted to drive away. Appellant became angry and took Baeza's car keys. Baeza fled to her daughter's room and attempted to call 911. Appellant pushed Baeza against the wall, causing a hole in the wall, and he repeatedly kicked and punched her while she was on the ground. Baeza was still afraid of Appellant at the time of trial. Appellant denied both instances of abuse. The trial court took judicial notice of Baeza's prior protective order against Appellant, which she applied for because she "was scared that he was going to kill [her]."
In its closing argument, the State referred to the offenses against Baeza, pointing to the similarity between those offenses and the offenses against Garcia because they both involved cell phones and Baeza's and Garcia's attempts to flee from Appellant. The State also recounted the factual details of the assaults against Baeza in detail.
B. Standard of Review and Applicable Law
A trial court's admission of extraneous-offense evidence is reviewed on an abuse of discretion standard. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). A trial court does not abuse its discretion if the decision to admit or exclude the evidence is within the "zone of reasonable disagreement." Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (en banc.). A trial court's determination on the admissibility of extraneous-offense evidence typically falls within the zone of reasonable disagreement if the evidence shows: (1) that an extraneous transaction is relevant to a material, non-propensity issue; and (2) the probative value of that evidence is not substantially outweighed by the danger of unfair prejudice, confusing the issues, or misleading the jury. De La Paz, 279 S.W.3d at 344. If the trial court's evidentiary ruling is correct on any theory of law applicable to that ruling, we will not disturb the ruling even if the trial court gave the wrong reason for the correct ruling. Id.
"Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait." Tex. R. Evid. 404(a)(1). Likewise, evidence of an extraneous crime, wrong, or other act is not admissible to prove a person's character to show that on a particular occasion the person acted in accordance with his character. Tex. R. Evid. 404(b)(1). But when the defendant claims self-defense or accident in an assaultive-offense case, the State may introduce extraneous-offense evidence under Rule 404(b)(2) to show the defendant's intent or motive, to rebut a defensive theory, or for some other non-propensity purpose (other than to show the defendant's conformity with his character at the time in question). See Tex. R. Evid. 404(b)(2); see also Moses v. State, 105 S.W.3d 622, 626 (Tex. Crim. App. 2003) (recognizing that rebuttal of a defensive theory is a permissible purpose for which relevant extraneous-offense evidence may be admitted under Rule 404(b)).
C. Evidence of Extraneous-Offenses Against Baeza Was Admissible
Here, Appellant argues that the trial court misapplied the first-aggressor rule by reversing the rule, allowing the State to introduce Appellant's extraneous offenses against Baeza to show that he committed the charged offenses against Garcia. He argues that under the first-aggressor rule, the trial court should have instead allowed him to offer evidence of Garcia's prior acts to show why he was justified in responding with physical force. He also contends that the trial court compounded the error by issuing jury instructions that encapsulated this erroneous interpretation of the first-aggressor rule and did not limit the use of the evidence for a non-propensity purpose under Rule 404(b)(2). The State responds that the evidence was admissible under Rule 404 to show Appellant's intent and to rebut Appellant's defensive theory of self-defense.
Appellant does not raise a separate appellate claim that the jury charge was erroneous on this basis, and thus we do not consider whether the jury charge caused harm. Neither does he argue that the trial court failed to consider whether the evidence's probative value was substantially outweighed by the risk of unfair prejudice under Tex. R. Evid. 403; instead, he concedes that the trial court properly conducted that analysis.
We agree with the State that Appellant's acts against Baeza were admissible to show his intent to commit the offenses against Garcia and to rebut his self-defense theory. Appellant's primary theory at trial was that he acted in self-defense against Garcia, the first aggressor in their altercations. To support his theory, Appellant testified that any of Garcia's injuries were only a result of his self-defense. To rebut Appellant's theory, the State was permitted to present evidence of the previous abuse against Baeza, which occurred under similar circumstances that involved cell phone communications, Appellant's jealousy regarding his romantic partners, and his violent reactions when they attempted to remove themselves from his presence. Moreover, the jury charge instructed the jury to consider the Baeza offenses "for the limited purpose of rebutting the defensive theory that the alleged victim was the first aggressor in the incidents in question," but only if they found that he committed the acts beyond a reasonable doubt. The charge also specifically prohibited the jury from using the evidence "to prove that [Appellant] is a bad person in general and therefore was likely to commit the charged offense."
Although Appellant did not commit the offenses against Baeza and Garcia under identical circumstances, the degree of similarity required to rebut a defensive issue is not great and the extraneous offense need not be identical to the charged offense to be admissible. See King v. State, No. 12-07-00433-CR, 2010 WL 1510204, at *6 (Tex. App.- Tyler Apr. 16, 2010, pet. ref'd) (mem. op., not designated for publication) (citing Blackwell v. State, 193 S.W.3d 1, 13 (Tex. App.-Houston [1st Dist.] 2006, pet. ref'd)); Dennis v. State, 178 S.W.3d 172, 178-79 (Tex. App.-Houston [1st Dist.] 2005, pet. ref'd).
For these reasons, the extraneous offenses against Baeza were admissible under Rule 404(b) to prove Appellant's intent and to rebut his self-defense theory by showing that it was less likely that he was the first aggressor in the assaults against Garcia. We conclude that the trial court's decision was within the zone of reasonable disagreement and thus it did not abuse its discretion in admitting the evidence. See Halliburton v. State, 528 S.W.2d 216, 218 (Tex. Crim. App. 1975) (holding that evidence that the defendant had shot another person in addition to the defendant was admissible to rebut the defendant's self-defense claim and show his intent and motive to commit the charged offense); Render v. State, 347 S.W.3d 905, 921 (Tex. App.-Eastland 2011, pet. ref'd) (holding that evidence that the defendant had previously assaulted another victim was admissible under Rule 404(b) to show the defendant's intent to commit the charged offense and to rebut his self-defense claim); Bradley v. State, 960 S.W.2d 791, 802-03 (Tex. App.-El Paso 1997, writ ref'd) (holding that the trial court did not abuse its discretion by admitting evidence of the defendant's extraneous offenses against his ex-wife to show the defendant's intent and to rebut the defendant's theory that the victim was the first aggressor); Stembridge v. State, No. 08-07-00181-CR, 2008 WL 4764116, at *3 (Tex. App.-El Paso Oct. 30, 2008, no pet.) (not designated for publication) (holding that the defendant's commission of extraneous offenses was admissible to rebut his self-defense claim and support his intent to commit the offense).
Appellant's second issue is overruled.
III. Conclusion
We affirm the trial court's judgment.
Marion, C.J. (Ret.) (sitting by assignment)