Ricky Yanez v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-98-00703-CR

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Ricky Yanez, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT NO. 98-3926, HONORABLE WILFORD FLOWERS, JUDGE PRESIDING

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Appellant Ricky Yanez appeals from a jury conviction of aggravated robbery with a deadly weapon. ⁽¹⁾ See Tex. Penal Code Ann. § 29.03. After finding him guilty of the charged offense, the jury assessed punishment at forty-five years' imprisonment. In a single point of error, Yanez contends that the trial court erred by allowing the prosecutor, during closing argument, to read from a witness statement that had not been formally introduced into evidence. Yanez requests that the judgment of the trial court be reversed and his cause be remanded for a new punishment trial. We will affirm.

Background

On February 17, 1997, three masked persons entered the South Austin home of Carlos Orsini. The intruders were armed with two handguns and a sawed-off shotgun. Carlos Orsini, his wife, and a guest were robbed of money and ten pounds of marihuana. Yanez later confessed to the crime, was tried, and found guilty of aggravated robbery by a jury. See Tex. Penal Code Ann. § 29.03.

During the punishment phase of the trial, evidence was introduced that implicated Yanez and a friend, Chavalon, ⁽²⁾ in the murder of Joseph Martinez. Yanez's former wife, Demetria Acevedo, testified that Yanez told her about the "job" Yanez and Chavalon had performed, i.e., the murder of Martinez. She testified that Yanez and Chavalon were to be paid $1,000 each for the murder, but Chavalon kept most of the money, giving Yanez only $200. Acevedo also testified that Yanez and Chavalon were cleaning their guns the night of the murder and that the next morning, she and Yanez went to the vicinity of the victim's house and retrieved an ammunition clip dropped the night before.

During closing argument, the prosecutor referred to the April 9, 1997, statement that Acevedo had given to the police regarding the Martinez murder. The written statement had not been introduced into evidence, nor had it been identified for the jury as an exhibit. The prosecution quoted Acevedo as saying in the statement: "[A]ll I know is that Ricky [Yanez] and Chavalon got back to the trailer that night with the guns. Chavalon gave Ricky $200 in cash. At that time Chavalon said to Ricky . . . " At this point defense counsel objected to the reading of Acevedo's written statement because it had not been admitted into evidence. The prosecutor replied that what he quoted was already in evidence, having been attested to by Acevedo when called as a witness at trial. The judge reminded the jury to recall the evidence and the testimony of the witnesses as they had heard it during the trial phase, not during the closing argument, ⁽³⁾ and overruled the objection. The prosecutor continued with his closing argument, making another reference to the statement:

Demetria Acevedo on the stand said this in my [her] statement, it was true. At the time Chavalon said to Ricky, here is part of the money that Ricky gave me. Ricky and Chavalon were on the porch when Chavalon said this and I guess Chavalon didn't know I could hear them. After Chavalon left, Ricky told me that he was supposed to get $1,000 for the job but Chavalon only gave him $200.

The defense did not object to the second reference made to the statement. After deliberation, the jury sentenced Yanez to forty-five years in prison.

Discussion

On appeal, Yanez argues that the prosecution tainted the punishment phase of the trial by presenting to the jury improper additional evidence, specifically, the statement of Demetria Acevedo. Proper jury argument is limited to summation of the evidence, reasonable deductions from the evidence, answers to argument of opposing counsel, and pleas for law enforcement. See Sparkman v. State, 968 S.W.2d 373, 380 (Tex. App.--Tyler 1997), cert. denied, 523 U.S. 1083 (1998) (citing Cooks v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992)). Here the prosecutor apparently read from what purported to be a written statement during closing argument. During Acevedo's live testimony from the witness stand the prosecutor was permitted, without objection, to elicit in question-and-answer form verbatim segments of Acevedo's statement. The prosecutor would read a portion of the statement and then ask Acevedo if the portion just read was true. In this manner most, if not all, of Acevedo's statement was introduced into evidence. The portions mentioned during closing argument were also introduced in this manner, as well as revisited in both re-direct examinations. Thus, the prosecutor's closing argument falls within the category of summation of evidence.

However, even if the prosecutor's closing argument was improper, appellant would still be required to show error in order to get a reversal. See Sparkman, 968 S.W.2d at 380, (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988)), accord Cooks, 844 S.W.2d at 727. "Error exists when facts not supported by the record are interjected; however, such error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused, into the trial." Id. Therefore, we must review the record to determine if, by allowing the prosecutor to read from the statement, new facts were injected into the trial. Our review of the record shows no new facts that were introduced during closing arguments. Therefore, appellant has shown no reversible error.

Even if the prosecution had interjected new facts, any resulting error was cured. An instruction to disregard an improper comment in jury argument will cure any error. See McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). After the defense objected to the prosecutor's argument, the judge reminded the jury of its duty to weigh only the evidence presented during the trial. The trial court's instruction to disregard was timely, and error was cured.

Yanez improperly relies upon Texas Rule of Appellate Procedure 21.3(f) in his request for a new trial. Rule 21.3(f) provides in pertinent part that: "The defendant must be granted a new trial for any of the following reasons: when, after retiring to deliberate, the jury has received other evidence . . ." Tex. R. App. P. 21.3(f) (emphasis added). This rule applies only when juries receive new evidence after retiring. In the present case, appellant complains of evidence presented during closing arguments, thus this rule is inapplicable. The defense had an opportunity to object and did so. At that point, the trial judge made a ruling and offered a curative instruction to the jury.

Conclusion

Having determined that the prosecutor's final argument was not improper, that the defendant showed no error, and that, if there were error, it was cured, we overrule Yanez's point

of error and affirm the conviction and punishment.

Mack Kidd, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: October 21, 1999

Do Not Publish

1. Tex. Penal Code Ann. § 29.03, Aggravated Robbery, provides:

(a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:

(A) 65 years of age or older; or

(B) a disabled person.

(b) An offense under this section is a felony of the first degree.

(c) In this section, "disabled person" means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.

Tex. Penal Code Ann. § 29.03 (West 1994).

2. Chavalon's real name is Joe Moreno.

3. Specifically, the judge said, "Members of the jury, you recall the evidence and the testimony of the witnesses as you heard it."

v. State, 844 S.W.2d 697, 727 (Tex. Crim. App. 1992)). Here the prosecutor apparently read from what purported to be a written statement during closing argument. During Acevedo's live testimony from the witness stand the prosecutor was permitted, without objection, to elicit in question-and-answer form verbatim segments of Acevedo's statement. The prosecutor would read a portion of the statement and then ask Acevedo if the portion just read was true. In this manner most, if not all, of Acevedo's statement was introduced into evidence. The portions mentioned during closing argument were also introduced in this manner, as well as revisited in both re-direct examinations. Thus, the prosecutor's closing argument falls within the category of summation of evidence.

However, even if the prosecutor's closing argument was improper, appellant would still be required to show error in order to get a reversal. See Sparkman, 968 S.W.2d at 380, (citing Allridge v. State, 762 S.W.2d 146, 155 (Tex. Crim. App. 1988)), accord Cooks, 844 S.W.2d at 727. "Error exists when facts not supported by the record are interjected; however, such error is not reversible unless, in light of the record as a whole, the argument is extreme or manifestly improper, violative of a mandatory statute or injects new facts, harmful to the accused, into the trial." Id. Therefore, we must review the record to determine if, by allowing the prosecutor to read from the statement, new facts were injected into the trial. Our review of the record shows no new facts that were introduced during closing arguments. Therefore, appellant has shown no reversible error.

Even if the prosecution had interjected new facts, any resulting error was cured. An instruction to disregard an improper comment in jury argument will cure any error. See McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App. 1989). After the defense objected to the prosecutor's argument, the judge reminded the jury of its duty to weigh only the evidence presented during the trial. The trial court's instruction to disregard was timely, and error was cured.

Yanez improperly relies upon Texas Rule of Appellate Procedure 21.3(f) in his request for a new trial. Rule 21.3(f) provides in pertinent part that: "The defendant must be granted a new trial for any of the following reasons: when, after retiring to deliberate, the jury has received other evidence . . ." Tex. R. App. P. 21.3(f) (emphasis added). This rule applies only when juries receive new evidence after retiring. In the present case, appellant complains of evidence presented during closing arguments, thus this rule is inapplicable. The defense had an opportunity to object and did so. At that point, the trial judge made a ruling and offered a curative instruction to the jury.

Conclusion

Having determined that the prosecutor's final argument was not improper, that the defendant showed no error, and that, if there were error, it was cured, we overrule Yanez's point

of error and affirm the conviction and punishment.

Mack Kidd, Justice

Before Justices Jones, Kidd and Patterson

Affirmed

Filed: October 21, 1999

Do Not Publish

1. Tex. Penal Code Ann. § 29.03, Aggravated Robbery, provides:

(a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another;

(2) uses or exhibits a deadly weapon; or

(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:

(A) 65 years of age or older; or

(B) a disabled person.

(b