Gustavo David Sanchez v. State ( 2004 )

Sanchez v. SOT

  NUMBERS 13-02-00170-CR

                                                        13-02-00175-CR

      COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG  

GUSTAVO DAVID SANCHEZ,                                                     Appellant,

v.

THE STATE OF TEXAS,                                                                Appellee.  

On appeal from the 138th District Court of Cameron County, Texas.  

  MEMORANDUM OPINION  

Before Justices Hinojosa, Yañez, and Garza

Opinion by Justice Hinojosa

          A jury found appellant, Gustavo David Sanchez, guilty of murder in cause number 13-02-175-CR, and guilty of three counts of aggravated assault in cause number 13-02-170-CR. The jury rejected appellant’s application for community supervision and assessed his punishment at life imprisonment and a $5,000 fine for the murder conviction and ten years imprisonment for each count of the aggravated assault convictions. All sentences were ordered to run concurrently. The trial court has certified that these cases are not plea-bargain cases and “the defendant has the right of appeal.” See Tex. R. App. P. 25.2(a)(2). Appellant does not attack the sufficiency of the evidence supporting his convictions, but contends: (1) the juvenile court was without jurisdiction to enter the order transferring these cases to the trial court; (2) the trial court erred in admitting evidence of extraneous acts during the punishment phase of these cases without reasonable notice; (3) the State improperly commented on appellant’s post-arrest silence; and (4) the trial court improperly excluded defense evidence at punishment. In both of these cases, we affirm the judgments of the trial court.

A. Background

          As this is a memorandum opinion not designated for publication and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. Tex. R. App. P. 47.4.

          In the early morning hours of April 8, 2001, Michael Rosales and three friends were in the backyard of his grandmother’s house in Harlingen. One of the friends, Richard Reyes, testified that he saw two individuals in the alley behind the house. The two individuals, later determined to be appellant and co-defendant, Travis Gabriel, approached the yard. Appellant fired four gunshots in the direction of Rosales. Rosales was hit in the back and killed. At the time of the shooting, appellant was sixteen years old.

B. Jurisdiction of Juvenile Court to Enter Transfer Order

          In his first issue, appellant contends the juvenile court erred in transferring these cases to the criminal court because it lacked jurisdiction. Appellant asserts the record does not affirmatively show the following elements required by the family code: (1) appellant was personally served with the summons; (2) appellant was served with a copy of the State’s petition; and (3) the summons stated that the purpose of the hearing was to consider transferring the cases to criminal court.

          Juvenile transfer proceedings are generally governed by section 54.02 of the Texas Family Code. Among other things, section 54.02 requires that “[t]he petition and notice requirements of Sections 53.04, 53.05, 53.06, and 53.07 of this code must be satisfied, and the summons must state that the hearing is for the purpose of considering discretionary transfer to criminal court.” Tex. Fam. Code Ann. § 54.02(b) (Vernon 2002). Pursuant to section 53.06, the juvenile court must direct issuance of a summons, and the petition accompanied by the summons must be served upon the child named in the petition. Tex. Fam. Code Ann. § 53.06 (Vernon 2002). Absent an affirmative showing on the record of service upon the juvenile, the juvenile court is without jurisdiction. In re D.W.M., 562 S.W.2d 851, 853 (Tex. 1978); In re K.P.S., 840 S.W.2d 706, 708 (Tex. App.–Corpus Christi 1992, no writ).

          As required by section 53.06, the record contains a summons, petition and return of service directed to appellant and appellant’s mother, Rita Sanchez. See Tex. Fam. Code Ann. § 53.06 (Vernon 2002). The record shows that the summons and a copy of the petition were hand-delivered to appellant by a Cameron County deputy sheriff. An officer’s return which is valid on its face carries a presumption of the truth of the facts stated on the return and that the service and return were true and regular. Sauve v. State, 638 S.W.2d 608, 610 (Tex. App.–Dallas 1982, pet. ref'd). A defendant may rebut this presumption, but his testimony alone is not sufficient; instead, he must offer corroborating facts and circumstances to rebut the presumption. Polanco v. State, 914 S.W.2d 269, 271 (Tex. App.–Beaumont 1996, pet. ref’d); Hot Shot Messenger Serv., Inc. v. State, 818 S.W.2d 905, 908 (Tex. App.–Austin 1991, no writ). Appellant has offered no evidence that he was not properly served, other than his bald assertion on appeal. Thus, appellant has not demonstrated a defect in service.

          Appellant further contends the trial court lacked jurisdiction because the summons failed to state that the purpose of the hearing was to consider a discretionary transfer of these cases to criminal court. The record shows that the summons issued to and served upon appellant provided, in relevant part:

To any sheriff, constable or peace officer of the State of Texas, Greetings: You are hereby commanded to summons: the child, Gustavo David Sanchez, who resides at . . . to be and appear before the 138th District Court of Cameron County, Texas, sitting as a Juvenile Court of Cameron County, on May 31, 2001 at 9:00 a.m., to answer the allegations of the Petition, a copy of which is attached hereto and made a part hereof.

The attached petition was entitled, “Petition for Discretionary Transfer to Criminal Court.” According to the petition, the State was seeking discretionary waiver of jurisdiction and transfer to criminal court for criminal proceedings. Thus, while the summons itself did not include the phrase “the hearing is for the purpose of considering discretionary transfer to criminal court,” it did include an express incorporation of the allegations of the attached petition and the petition contains references to criminal proceedings in criminal court, thus satisfying section 54.02(b) of the family code. See Hardesty v. State, 659 S.W.2d 823, 825 (Tex. Crim. App. 1983) (en banc). Appellant’s first issue is overruled.

C. Introduction of Extraneous Evidence

          In his second issue, appellant contends it was reversible error for the trial court to admit evidence of extraneous bad acts at the punishment phase of the trial because the State failed to give reasonable notice of its intent to introduce the extraneous evidence.

          Article 37.07, section 3 of the code of criminal procedure governs the admission of extraneous acts after a defendant has been found guilty. That statute provides that the parties may offer evidence of any matter the court deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a)(1) (Vernon Supp. 2004). Upon the defendant’s timely request, the State must give notice of its intent to introduce extraneous evidence of a crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(g) (Vernon Supp. 2004). Notice of the State’s intent to introduce extraneous evidence is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act. Id. (emphasis added). The purpose of the notice requirement is to avoid unfair surprise and trial by ambush. Brown v. State, 54 S.W.3d 930, 933 (Tex. App.–Corpus Christi 2001, pet. ref’d); Henderson v. State, 29 S.W.3d 616, 625 (Tex. App.–Houston [1st Dist.] 2000, pet. ref’d). Because these rules provide only minimal details regarding the manner in which notice is given, the reasonableness of the State’s notice turns on the facts and circumstances of each individual case. Scott v. State, 57 S.W.3d 476, 480 (Tex. App.–Waco 2001, pet. ref'd); Patton v. State, 25 S.W.3d 387, 392 (Tex. App.–Austin 2000, pet. ref’d).

          On August 15, 2001, appellant filed a motion for discovery of “all prior misconduct and evidence of extraneous offense(s), which the State intends to use against the Defendant.” The next day, the State filed a “Notice of State’s Intention to Introduce Extraneous Offenses.” The notice listed two aggravated assaults occurring on or about April 6, 2001, in Cameron County. The names of the alleged victims were listed as unknown.

          On August 30, 2001, defense counsel argued against the introduction of any extraneous offense evidence, and specifically the April 6 aggravated assaults. The trial court reserved ruling on the admissibility of this evidence for trial, and noted that the State had merely provided appellant with notice of the extraneous acts. At a pre-trial hearing on December 10, 2001, defense counsel generally claimed a lack of notice of any extraneous act committed on April 6. The prosecuting attorney responded on the record that she had provided defense counsel with a revised copy of the notice she had previously filed, with the names of the alleged victims handwritten in. She further stated she had sent the revised notice on August 16, 2001, as soon as she learned the names of the victims. Trial commenced December 11, 2001 and concluded with the punishment phase on December 14, 2001.

          Ultimately the determination of the reasonableness of the State’s notice is made by the trial court and is committed to its sound discretion. Sebalt v. State, 28 S.W.3d 819, 822 (Tex. App.–Corpus Christi 2000, no pet.). After reviewing the record, we hold that the trial court did not abuse its discretion in allowing the State to present evidence of the April 6, 2001 shootings. It is undisputed that defense counsel knew of the State’s intention to introduce the extraneous acts evidence as early as August 2001. The State promptly gave notice of the alleged victims’ names as soon as they were known. Before the punishment hearing, the trial court soundly rejected appellant’s contention of being surprised or ambushed.

          Furthermore, after the jury had retired to deliberate punishment, appellant stated on the record that he had, in fact, committed the extraneous offenses. Appellant stated that he had failed to tell his defense counsel that he had committed the acts. Considering this evidence, appellant cannot now claim to be surprised by the introduction of the extraneous offense evidence at the punishment hearing. Appellant’s second issue is overruled.

D. Comment on Defendant’s Post-Arrest Silence

          In his third issue, appellant contends the trial court erred in denying his motion for mistrial because the State improperly commented on his post-arrest silence. We review a trial court’s denial of a motion for mistrial under an abuse-of-discretion standard. Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999).

          The complained-of comment occurred during the testimony of Detective Alvaro Garcia, the officer who arrested appellant and the co-defendant, Travis Gabriel, at Gabriel’s apartment on the night of the shooting. The State examined Garcia regarding the demeanor of the two juveniles after detaining them in the apartment. The prosecutor asked:

          Q:       What was their behavior like when you were interviewing them?

          A:       They were just calm, sitting there on the sofa, really didn’t have any answers for us when we were asking questions.

The record reflects that appellant timely moved for a mistrial, outside the presence of the jury. Appellant argued that Garcia’s testimony violated the defendant’s constitutional right to remain silent. The trial court denied appellant’s motion for mistrial. The trial court did not give the jury a curative instruction because appellant’s counsel specifically requested that no instruction be given.

          A comment on a defendant’s post-arrest silence violates the prohibition against self-incrimination provided by the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Texas Constitution. Doyle v. Ohio, 426 U.S. 610, 618 (1976); Dinkins v. State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995); Sanchez v. State, 707 S.W.2d 575, 580 (Tex. Crim. App. 1986); see U.S. Const. amend. V; Tex. Const. art. I, § 10. A comment on a defendant’s post-arrest silence is akin to a comment on his failure to testify at trial because it attempts to raise an inference of guilt arising from the invocation of a constitutional right. Dinkins, 894 S.W.2d at 356.

          Generally, an instruction to disregard will cure any error associated with a comment on a defendant’s post-arrest silence. Id.; Lewis v. State, 933 S.W.2d 172, 182 (Tex. App.–Corpus Christi 1996, pet. ref’d). An instruction to disregard is considered effective unless the facts of the particular case suggest the impossibility of withdrawing the impression produced on the minds of the jury. Franklin v. State, 693 S.W.2d 420, 428 (Tex. Crim. App. 1985).

          In the present case, we find nothing in the record that leads us to conclude that the detective’s comment was clearly calculated to inflame the minds of the jury, or that the jury was fatally prejudiced by the testimony. The prosecutor’s question did not intentionally elicit the complained-of statement; rather, it was a general question concerning the defendants’ demeanor. Further, this was an isolated reference and the State did not continue in an impermissible line of argument and made no other mention of appellant’s post-arrest silence.

          Moreover, the remark was not so inflammatory that an admonishment could not have removed any prejudicial effect. However, the jury was not admonished because appellant specifically requested that a curative instruction not be given to the jury.

          We hold the trial court did not err in refusing to grant a mistrial. We overrule appellant’s third issue.

E. Exclusion of Defense Evidence

          In his fourth issue, appellant contends the trial court’s exclusion of defense evidence showing appellant’s state of mind was reversible error. We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. Allen v. State, 108 S.W.3d 281, 284 (Tex. Crim. App. 2003). We will reverse the trial court’s decision only if it is outside the zone of reasonable disagreement. Id.

          The code of criminal procedure provides that during the punishment phase, a trial court may admit evidence of any matter the court deems relevant to sentencing. Tex. Code Crim. Proc. Ann. art. 37.07, § 3(a) (Vernon Supp. 2004). Determining what is relevant should be a question of what is helpful to the jury in determining the appropriate sentence for a particular defendant in a particular case. Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999).

          The record in these cases shows that, prior to the night in question, someone shot at appellant’s home. The persons responsible for the shooting received deferred adjudication community supervision for ten years. Appellant stated that as a result of the shooting, he was forced to purchase a gun to protect himself and his family since the “system” would not provide such protection, as evidenced by the lenient sentences received by the guilty parties. Appellant claimed that the reason he fired his gun at the deceased was because he felt threatened at the time and was only trying to scare the victims.

          During punishment, appellant sought to introduce evidence of these sentences to show his state of mind at the time of the murder and as a mitigating factor at punishment. The State argued that this evidence should be excluded because it was not relevant. The trial court excluded evidence of these sentences; however, it did allow appellant to introduce evidence regarding three separate shootings involving appellant. In two instances, appellant’s home was fired upon. In the third incident, appellant was shot while standing next to his sister’s vehicle. At the punishment hearing, appellant was allowed to present his self-defense argument as a mitigating factor.

          We can see no reason why evidence of the sentences imposed against other individuals in a completely unrelated matter would be helpful to the jury in determining the appropriate sentence in these particular cases. More importantly, appellant has failed to show that the trial court abused its discretion in excluding this evidence. Accordingly, we overrule appellant’s fourth issue.

          In both of these cases, we affirm the judgments of the trial court.

                                                                           FEDERICO G. HINOJOSA

                                                                           Justice

Do not publish. See Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed this the

1st day of July, 2004.