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Affirmed and Memorandum Opinion filed June 9, 2009
Affirmed and Memorandum Opinion filed June 9, 2009.
In The
Fourteenth Court of Appeals
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NO. 14-08-00176-CR
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MICHAEL SEGOVIA, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court
Harris County, Texas
Trial Court Cause No. 1116717
M E M O R A N D U M O P I N I O N
Appellant Michael Segovia challenges his conviction for criminally negligent homicide. The jury assessed punishment as confinement for three years and a fine of $7,500. Appellant contends the trial court erred by (1) overruling his objections to testimony that he did not speak to the police prior to trial; (2) overruling his objections to testimony that he contacted and retained counsel before contacting the police; and (3) excluding testimony that appellant had been told of threats the complainant made against him, and that the complainant had killed a police officer in Mexico. We affirm.
Background
Appellant went to a nightclub during the evening of May 12, 2007 with his wife, Mila Segovia, and Mila=s friend, Diana Altamirano, to celebrate Mila=s birthday. Following the celebration, appellant and Mila drove Diana to the apartment of Diana=s mother during the early morning hours of May 13, 2007. The group stopped by the house of appellant=s parents to pick up the Segovias= one-year-old daughter, Ariel.
Upon arriving at the apartment complex, appellant waited in the driver=s seat with Ariel in the back seat while Mila escorted Diana upstairs to her mother=s apartment. The complainant, who was the boyfriend of Diana=s mother, answered the door when the two women approached the apartment.
Mila and Diana turned to leave and hurried downstairs to the car. The complainant followed them to the landing at the bottom of the first set of stairs and then stopped. Appellant and the complainant engaged in a verbal confrontation as Mila and Diana continued making their way to the car. Appellant remained in the driver=s seat of the car with the engine running, but leaned out of the window as he argued with the complainant.
After Mila and Diana reached the car, appellant fired one shot from his revolver toward the complainant before driving away. The bullet struck the complainant in the jaw and killed him. The landing on which the complainant was standing when he was shot was approximately 34 feet from where appellant was parked. No weapon was found on or near the complainant=s body.
A formal complaint charging appellant with murder was filed on May 14, 2007. Appellant turned himself in upon the advice of counsel and appeared before the court on May 16, 2007. Appellant waived his statutory warnings at that appearance. He subsequently was indicted for murder.
Trial began on February 26, 2008. Appellant asserted self-defense and defense of third persons at trial. The jury found appellant guilty of the lesser-included offense of criminally negligent homicide, sentenced him to confinement for three years, and imposed a $7,500 fine. The trial court signed its judgment imposing the jury=s sentence on March 4, 2008. Appellant appeals from this judgment.
Standard of Review
We review a trial court=s decision to admit or exclude evidence for abuse of discretion. Martin v. State, 246 S.W.3d 246, 258 (Tex. App.CHouston [14th Dist.] 2007, no pet.). We will not reverse a trial court=s ruling unless that ruling falls outside the zone of reasonable disagreement. Id. We cannot reverse a trial court=s admissibility decision solely because we disagree with it. Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We must affirm a trial court=s ruling if it is correct on any theory of law applicable to the case. Dickson v. State, 246 S.W.3d 733, 738 (Tex. App.CHouston [14th Dist.] 2007, pet. ref=d).
Analysis
I. Admission of Testimony That Appellant Did Not Speak to Police and Retained Counsel Before Contacting Police
Appellant contends on appeal that the trial court=s evidentiary rulings violated (1) his right not to speak to the police under Article I, Section 10 of the Texas Constitution and Amendment V of the United States Constitution as applied to the states by Amendment XIV; and (2) his right under article 38.38 of the Texas Code of Criminal Procedure to exclude evidence that he retained an attorney. The State contends that appellant waived these complaints. We begin by analyzing each exchange about which appellant complains.
A. Preservation of Error Standards
Constitutional claims may be waived by the failure to raise a timely objection in the trial court. Arana v. State, 1 S.W.3d 824, 827 n.3 (Tex. App.CHouston [14th Dist.] 1999, pet. ref=d). To preserve error for appellate review, an appellant must make a timely, specific objection and obtain an adverse ruling. See Tex. R. App. P. 33.1(a); Erazo v. State, 260 S.W.3d 510, 514 (Tex. App.CHouston [14th Dist.] 2008, pet. ref=d). An appellant=s complaint on appeal must comport with the objection made at trial; otherwise, the appellant has preserved nothing for review. See Tex. R. App. P. 33.1(a); Resendiz v. State, 112 S.W.3d 541, 547 (Tex. Crim. App. 2003).
To avoid forfeiture of a complaint on appeal, the complaining party must let the trial judge know what relief he wants, why he believes he is entitled to it, and make his point clearly enough that the trial judge can understand him when the trial court is in the proper position to address the complaint. See Clarke v. State, 270 S.W.3d 573, 580 (Tex. Crim. App. 2008). An appellant fails to preserve a state constitutional complaint for our review when his objection to questions about his right to silence invokes only Amendment V of the United States Constitution. See Heidelberg v. State, 144 S.W.3d 535, 542-43 (Tex. Crim. App. 2004) (en banc).
A complaining party must object each time allegedly inadmissible evidence is offered. See Reynolds v. State, 848 S.W.2d 785, 792 (Tex. App.CHouston [14th Dist.] 1993, pet. ref=d). As a general rule, a complaint regarding improperly admitted evidence is waived if the same evidence is introduced elsewhere during trial without objection. See Mitchell v. State, 68 S.W.3d 640, 643 (Tex. Crim. App. 2002) (en banc); Wootton v. State, 132 S.W.3d 80, 84 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d).
Pre-arrest silence is a constitutionally permissible area of inquiry for impeachment purposes during cross-examination of a defendant. Jenkins v. Anderson, 447 U.S. 231, 238-40 (1980); Waldo v. State, 746 S.W.2d 750, 755 (Tex. Crim. App. 1988) (en banc). The Fifth Amendment to the United States Constitution protects post-arrest silence arising after Miranda warnings have been given. Heidelberg, 144 S.W.3d at 537.
When (1) the State asks questions about a defendant=s silence that are not time-specific; (2) defense counsel fails to cite the Texas Constitution or specify that his objection relates to post-arrest silence; and (3) the trial judge=s commentary and rulings indicate no reliance on the Texas Constitution or awareness that defense counsel=s objection was intended to relate to post-arrest silence, an objection on Fifth Amendment grounds preserves no state constitutional claims for review. See id. at 536-43.
B. Application of Preservation Standards
The first exchange about which appellant complains occurred during direct examination of Houston Police Officer Dan Arnold by the State:
STATE: Now, Officer, did [appellant] ever turn himself in to you on May 13th?
ARNOLD: No, ma=am.
STATE: Did he ever voluntarily come and talk to you about the case?
ARNOLD: No.
STATE: Did he ever come and hand you the gun that he used?
DEFENSE: Excuse me, your Honor _
ARNOLD: No.
DEFENSE: _ this is not in good faith. Did he ever _ he did go to the police station _
COURT: Well, let=s _
DEFENSE: _ but not through this person.
STATE: Objection to defense testifying, your Honor.
COURT: Yeah. The objection is sustained. Please, no.
DEFENSE: The question was: did he _
COURT: You=ll have a full opportunity, sir.
STATE: Did you, at some point, receive a phone call?
ARNOLD: I did.
STATE: And who was that from?
ARNOLD: [Defense counsel].
STATE: And after speaking with [defense counsel], did [defense counsel] and/or [appellant] ever come see you?
ARNOLD: They did not.
STATE: Did [defense counsel] and/or [appellant] come and explain to you _
DEFENSE: Okay. Then I=m going to object as well _
COURT: Sustain the objection.
DEFENSE: Thank you.
STATE: After speaking with [defense counsel], did you ever have an opportunity to speak to [appellant]?
ARNOLD: I did not.
STATE: Now, what did you do after you had spoken to [defense counsel]?
DEFENSE: Your Honor, I=m going to have to approach. This is going to be a Motion for a Mistrial, and I=m going to have to make my argument not in front of the jury.
COURT: Motion for mistrial is denied.
DEFENSE: You asked me yesterday _
COURT: Make your Bill, sir.
DEFENSE: _ not to argue in front of the jury, and I ask to approach the Bench.
COURT: Make your Bill at lunchtime, please.
STATE: What did you do next in regards to your investigation?
DEFENSE: Excuse me. I=m sorry. I know I may _ I want it to be timely. I=m required to make a timely objection.
COURT: You have, sir.
DEFENSE: Will you deem it timely at noon?
COURT: Yes.
As directed by the trial court, appellant explained his objections later during the noon recess.[1]
COURT: We can make your Bill now. Have you focused on what it is, and do you need the witness?
DEFENSE: No. No. I can _ I=m going to proffer the Bill.
COURT: Okay.
DEFENSE: And it=s on three different points that happened. The first one is the comment on the defendant=s refusal to come in and talk to the police officer. And I objected to that and couldn=t ever get the full objection out until you said I could make it at noon, but I=m making it now. That is _
COURT: Are you listening?
STATE: Yes, your Honor. I am listening.
COURT: Okay.
DEFENSE: That is a comment on [appellant=s] right not to talk to police officers if they don=t want to. It=s the Fifth Amendment Right. And it=s prejudicial. And the jury ought to _ should not have heard whether or not he refused to come in and talk to him. And that was a pure implication.
ADid you want to talk to him?@
AYes.@
AWere you ever allowed to talk to him?@
ANo.@
That=s not relevant to this case, and it should have been _ my objection, in my humble opinion, should have been stopped. The prosecutor should have not done that. If the jury thinks that there=s maybe some reason that he didn=t talk to the _ and that=s the whole purpose behind the Fifth Amendment and ourrule not to let a jury even consider or hear those things. That=s my first point, my first objection.
Appellant concluded his explanation by attempting to clarify the record regarding his Fifth Amendment objections:
DEFENSE: I=m not sure if we ever got a ruling on the _ after you allowed me to express my objection on the Bill _ about the asking if he ever got to interrogate [appellant]. I don=t know if we ever got a ruling on it once you understood what my objection was.
COURT: On the Bill, where you were revisiting what went on this morning, all my rulings are still in place, the same ones.
During this first exchange, appellant objected to two questions. Appellant=s objection to the question, ADid [defense counsel] and/or [appellant] come and explain to you _@ was sustained and need not be discussed further. See Tex. R. App. P. 33.1(a); Erazo, 260 S.W.3d at 514.
The other question to which appellant objected was, ADid he ever come and hand you the gun that he used?@ Appellant objected to this question on Fifth Amendment grounds, and asserted that it was Anot in good faith.@ Appellant did not invoke the Texas Constitution or article 38.38 as grounds for this objection during trial; therefore, no complaint based on the Texas Constitution or article 38.38 was preserved for our review. See Heidelberg, 144 S.W.3d at 542-43; Resendiz, 112 S.W.3d at 547. Appellant=s Fifth Amendment objection to this specific question was waived when appellant later testified without objection that he threw the gun used in the shooting into a bayou off Mason Road. See Wootton, 132 S.W.3d at 84.
The next two exchanges about which appellant complains occurred during the State=s cross-examination of appellant:
STATE: Now, also according to Diane, [the complainant] just had his hand on his thigh. She never saw him reach for anything. But now you=re saying he did?
APPELLANT: I did, ma=am.
STATE: And today is the first day you ever said that, right? To anyone, correct?
DEFENSE: Excuse me.
APPELLANT: No, ma=am.
DEFENSE: Objection, your Honor. May we approach the Bench?
COURT: Yes.
(At Bench)
DEFENSE: That is a direct comment on a person=s right, Fifth Amendment Right, not to talk to a police officer.
STATE: It=s not a Fifth Amendment Right [not] to talk to a police officer. It=s a Fifth Amendment Right not to testify in court.
DEFENSE: No. No. The Fifth Amendment says you have a right to silence. And what happened was she=s proved up that [appellant] _
STATE: That=s in court.
COURT: Don=t talk at the same time, please.
DEFENSE: And she has now said _ maybe you didn=t see the transaction happen _ but she has now said, AThis is the first time you=ve said that; isn=t that right?@ Meaning didn=t tell any police officer.
COURT: Objection is overruled.
* * *
STATE: Well, were you aware that your wife was at the police station at some point?
APPELLANT: As soon as I was aware, I turned myself in, ma=am.
STATE: No. You went and called a lawyer; isn=t that true?
APPELLANT: Yes, ma=am, so my words wouldn=t be twisted up.
STATE: Okay. Well, do you think the police framed you, Mr. Segovia?
APPELLANT: No, ma=am. No, ma=am.
STATE: Okay. There=s nothing wrong with making a statement, is there?
APPELLANT: No, ma=am, there=s not.
STATE: But you never gave one, did you? You never gave a statement _
DEFENSE: Your Honor _
APPELLANT: I wanted to.
DEFENSE: Excuse me. I=m not fearful of the answer. But this is the same thing I=ve been objecting to, about a person=s right to have counsel and assistance of counsel.
COURT: Certainly. And the objection=s overruled.
DEFENSE: Note my exception, your Honor.
STATE: You could have told your lawyer, couldn=t you have?
DEFENSE: Excuse me. A person should not be penalized for exercising a right to counsel, and that=s what she=s trying to do.
COURT: Certainly.
DEFENSE: Re-urge my motion.
COURT: The motion is overruled.
STATE: You chose not to make any statements before you reached a lawyer, correct?
DEFENSE: That=s not even correct. So, I have to object. And it=s _
COURT: The objection=s overruled.
STATE: Isn=t that correct?
APPELLANT: Can you repeat the question?
STATE: Mr. Segovia, today is the first time _ what is it? May. We=re in February. Almost ten months to a year later. For the first time today _
DEFENSE: Your Honor, I=m going to re-urge it. No one even asked him for a statement.
STATE: Your Honor _
DEFENSE: You know, it=s like this is a misleading _
STATE: I=m going to object to speaking objections.
DEFENSE: _ prejudicial _
COURT: When you both talk at the same time, it=s impossible for the court reporter to do justice to either one of you. The objection is overruled.
During the first of these exchanges, appellant objected to the question, AAnd today is the first day you ever said that, right? To anyone, correct?@ Appellant objected to this question only on Fifth Amendment grounds, and did not preserve any complaint under the Texas Constitution or article 38.38 of the Texas Code of Criminal Procedure. See Heidelberg, 144 S.W.3d at 542-43; Resendiz, 112 S.W.3d at 547.
Our conclusion that appellant failed to preserve any complaint under the Texas Constitution rests on Heidelberg. In that case, the defendant was convicted of sexually assaulting his wife=s eight-year-old granddaughter. Heidelberg, 144 S.W.3d at 535. The defendant complained that the trial court erred by (1) allowing him to be cross-examined about his post-arrest silence; (2) allowing the State to elicit rebuttal testimony about his post-arrest silence; and (3) overruling his objections to the State=s comments on his post-arrest silence during closing argument. Id. at 535-36. The First Court of Appeals held that the defendant failed to preserve his objections under the Texas Constitution and affirmed the conviction. Id.
On appeal, the defendant contended that the trial court violated the Texas Constitution by allowing the State to refer to his post-arrest silence. Id. at 537 (citing Tex. Const. art. I, _ 10). The State contended that the defendant waived any complaints based upon the state constitution because his objections at trial were based solely on the Fifth Amendment to the United States Constitution. Id. The Court of Criminal Appeals stressed that the Texas Constitution protects a defendant=s post-arrest silence prior to receipt of Miranda warnings, while the Fifth Amendment protects post-arrest silence arising only after Miranda warnings have been administered. Id. (citing Fletcher v. Weir, 455 U.S. 603 (1982), and Doyle v. Ohio, 426 U.S. 610, 618 (1976)).
The State=s questions about which the defendant complained in Heidelberg did not specify whether they referred to his silence before or after Miranda warnings were given. Id. at 536-37, 542-43. The defendant did not invoke the Texas Constitution when he objected at trial, nor did he indicate to the trial court that he was contesting comments on his post-arrest silence. Id. The record in the case did not indicate any reliance by the trial judge on the Texas Constitution in ruling on the objections, or any awareness on the trial court=s part that the defendant intended to invoke the state constitution. Id. The Court of Criminal Appeals held that a Fifth Amendment objection under such circumstances does not preserve for review a complaint invoking the Texas Constitution. Id. at 542-43.
Here, as in Heidelberg, (1) appellant objected only on Fifth Amendment constitutional grounds; and (2) the trial court gave no indication that it relied on the Texas Constitution in overruling appellant=s objections or was aware that appellant intended to invoke the state constitution. See id. Because we conclude that Heidelberg controls, we hold that appellant waived his state constitutional complaint. See id. However, appellant=s objection did preserve his Fifth Amendment complaint for review on the merits. See Tex. R. App. P. 33.1(a); Clarke, 270 S.W.3d 573, 580.
During the second exchange above, appellant objected to the question, ABut you never gave one, did you? You never gave a statement _@ on grounds that it constituted an impermissible comment on appellant=s right to retain counsel. While appellant did not specifically mention article 38.38 at trial, it is apparent from the record that his objection was based on that statute. See Tex. Code Crim. Proc. Ann. art. 38.38 (Vernon 2005) (AIn a criminal case, neither the judge nor the attorney representing the state may comment on the fact that the defendant has contacted or retained an attorney in the case.@). Appellant=s objection preserved his article 38.38 complaint for review. See Clarke, 270 S.W.3d 573, 580; Smith v. State, ___ S.W.3d ___, No. 14-07-00966-CR, 2009 WL 1312953, at *2 n.2 (Tex. App.CHouston [14th Dist.] May 12, 2009, no pet. h.). Appellant did not preserve any constitutional complaints for review based on this objection. See Resendiz, 112 S.W.3d at 547.
Appellant then spoke up following the State=s next question: AYou could have told your lawyer, couldn=t you have?@ Rather than objecting, appellant mentioned the exercise of the right to counsel and re-urged his motion for mistrial. The trial court replied: AThe motion is overruled.@ Because appellant challenges only the overruling of his objections on appeal, this ruling on a re-urged motion for mistrial preserves nothing for review. See id. Furthermore, even if we were to treat appellant=s re-urging of his motion for mistrial as an objection, this complaint was not preserved for our review because the same information sought by the question asked was introduced by the State=s next few questions discussed below. See Wootton, 132 S.W.3d at 84.
Appellant then objected to the question, AYou chose not to make any statements before you reached a lawyer, correct?@ on grounds that AThat=s not even correct.@ Appellant=s final objection in this exchange was to the question, AMr. Segovia, today is the first time _ what is it? May. We=re in February. Almost ten months to a year later. For the first time today _@ and asserted that the question was misleading and prejudicial.[2] These objections were not based on the Fifth Amendment, the Texas Constitution, or article 38.38, and they preserve nothing for review. See Resendiz, 112 S.W.3d at 547.
Finally, appellant complains on appeal about two paragraphs from the State=s closing argument in which the State referenced appellant=s failure to contact the police following the shooting. Appellant failed to object at trial to these two paragraphs. Because appellant failed to timely object, he preserved nothing from the State=s closing argument for review. See Tex. R. App. P. 33.1(a); Erazo, 260 S.W.3d at 514.
With regard to appellant=s first two issues, we are left with two preserved complaints: one on Fifth Amendment grounds, and another on article 38.38 grounds. We now analyze these issues on the merits.
C. Analysis of Appellant=s Fifth Amendment Complaint on the Merits
Appellant contends that the trial court erred by overruling his Fifth Amendment objection to the State=s question, AAnd today is the first day you ever said that, right? To anyone, correct?@ during cross-examination of appellant. Appellant contends that this question violated his rights under the Fifth Amendment because it constituted an improper comment on his decision to remain silent and to not make potentially inculpatory statements to police. The State contends that appellant had no Fifth Amendment right to silence in this context because (1) appellant was not arrested, but instead turned himself in after the complaint was filed; and (2) Fifth Amendment protection applies to only post-arrest silence following the reading of an individual=s Miranda rights.
It is undisputed that appellant was not arrested; instead, he turned himself in after charges had been filed on May 14, 2007. It also is undisputed that appellant waived his statutory warnings at a court appearance on May 16, 2007.
As noted earlier, the Fifth Amendment protects post-arrest silence arising after Miranda warnings have been administered. Heidelberg, 144 S.W.3d at 537. Appellant invites us to take the Fifth Amendment protections governing post-arrest silence and apply them to what he calls Apost-complaint@ silence. Appellant concedes that he can identify no authority analogizing Apost-complaint@ silence _ in this case, appellant=s silence after May 14, 2007 _ to post-arrest silence. We have found no such authority. Under these circumstances, the Fifth Amendment protections invoked by appellant do not apply. See id. at 542-43. Therefore, the trial court acted within its discretion when it overruled appellant=s Fifth Amendment objection. See Martin, 246 S.W.3d at 258.
We overrule appellant=s issue regarding the overruling of his Fifth Amendment objections to testimony about his failure to speak to the police prior to trial.
D. Analysis of Appellant=s Article 38.38 Complaint on the Merits
Appellant contends that the trial court erred by overruling his article 38.38 objection to the State=s question, ABut you never gave one, did you? You never gave a statement _@ during cross-examination of appellant. The State contends that this question related to appellant=s desire to remain silent rather than to his right to counsel, and appellant=s objection on article 38.38 grounds properly was overruled.
In a criminal case, neither the trial court nor the attorney representing the state may comment on the fact that the defendant has contacted or retained an attorney in the case. Tex. Code Crim. Proc. Ann. art. 38.38. Statements that an accused does not wish to speak to the police before consulting an attorney are more properly characterized as referencing the accused=s desire to remain silent rather than his right to counsel. See State v. Lee, 15 S.W.3d 921, 923-24 (Tex. Crim. App. 2000), overruled on other grounds by Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007); Dinsmore v. State, No. 14-06-01089-CR, 2008 WL 2133198, at *3 (Tex. App.BHouston [14th Dist.] May 20, 2008, no pet.) (mem. op., not designated for publication).
A close examination of the State=s question about the absence of a statement by appellant to the police demonstrates that it addressed appellant=s desire not to speak with police rather than appellant=s retention of counsel. See Lee, 15 S.W.3d at 923-24; Dinsmore, 2008 WL 2133198, at *3. Therefore, the trial court acted within its discretion in overruling appellant=s objection on article 38.38 grounds. See Martin, 246 S.W.3d at 258.
We overrule appellant=s issue regarding the overruling of his objections to testimony that he contacted and retained counsel before contacting the police.
II. Exclusion of Testimony Regarding the Complainant=s Violent Character
Appellant next contends on appeal that the trial court erred by excluding testimony from third parties establishing appellant=s knowledge of the complainant=s propensity for violence. Appellant proffered this evidence to support his theories of self-defense and defense of third persons. The State contends that this evidence was in fact admitted before the jury and, in the alternative, that any error by the trial court in excluding such testimony was harmless.
Generally, a defendant in a murder case who raises the issue of self-defense may introduce evidence of the complainant=s violent character. Tex. R. Evid. 404(a)(2); Torres, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002). The defendant may offer opinion or reputation testimony to prove the complainant acted in conformity with his violent nature. Tex. R. Evid. 404(a)(2); Torres, 71 S.W.3d at 760. Specific, violent acts of misconduct may be admitted to show (1) the reasonableness of the defendant=s fear of danger; or (2) that the complainant was the first aggressor. Torres, 71 S.W.3d at 760.[3]
A. Admitted Third-Party Evidence
The record contains substantial testimony from third parties about the complainant=s propensity for violence C including testimony about specific instances of violence C upon which the jury reasonably could have relied to draw conclusions regarding appellant=s state of mind at the time of the shooting. Diana Altamirano testified that (1) she saw the complainant hit her mother multiple times; (2) Diana and other family members had called the police multiple times regarding the complainant=s domestic violence; (3) she moved out of her mother=s residence in part because of an incident in which the complainant hit her, her mother, and one of her sisters; (4) police removed the complainant from Diana=s mother=s residence twice for assaulting Diana=s mother; (5) the complainant sexually assaulted Diana; and (6) the complainant had been arrested and removed from Diana=s mother=s residence Ashortly before@ the shooting.
Karen Altamirano, Diana=s teenage sister who still lived with Diana=s mother at the time of the shooting, testified that (1) she saw the complainant slap and push her mother; (2) Karen and her younger sister called the police to their residence several times to protect their Afamily from what [the complainant] might do@; (3) Karen had been home when police had come to the residence and arrested the complainant; (4) she was present in September 2006 when the complainant held a knife to her mother=s neck and her younger sister called the police; (5) Karen was present on May 3, 2007 C 10 days before the shooting C when the complainant used a tire tool to pound on the door to the residence and was then taken away by police; and (6) the complainant once hit her mother in the chest with a tequila bottle and then poured the tequila onto Karen and her mother when Karen intervened. Officer Arnold testified that the complainant Ahad been arrested recently@ before the May 13, 2007 shooting. Houston Police Officer Darren Chippi testified that he searched a purse inside the residence of Diana=s mother for weapons based upon Asomething else that I had learned@ but to which he could not testify specifically Awithout saying what somebody else told me.@
In addition to the testimony from third parties regarding the complainant=s propensity for violence, there also was testimony from third parties from which the jury reasonably could have inferred that appellant was aware of the complainant=s violent tendencies. Diana Altamirano testified that (1) appellant told her after the shooting that Ahe was just trying to protect his C it was fast and he didn=t know it was going to happen@; (2) she told officers that appellant thought the complainant was trying to hurt him, Mila Segovia, and Ariel Segovia; (3) she told appellant=s wife and co-worker about the complainant sexually assaulting her; and (4) Diana told appellant and his wife about the complainant=s Aassaultive character.@
A trial court may exclude relevant evidence if its probative value is substantially outweighed by considerations of undue delay or needless presentation of cumulative evidence. Tex. R. Evid. 403; Long v. State, 823 S.W.2d 259, 275 (Tex. Crim. App. 1991) (en banc). In light of the substantial third-party testimony regarding the complainant=s general propensity for violence and specific acts of violence against Diana Altamirano and her mother described above, the trial court acted within its discretion in excluding additional third-party testimony relevant to the complainant=s propensity for violence. See Dickson, 246 S.W.3d at 738; Martin, 246 S.W.3d at 258.
B. Evidence Not Established by Third Parties
Appellant complains that the trial court thwarted his attempts to introduce through a third party that the complainant had killed people in Mexico C including a police officer C and had threatened appellant. Appellant contends he was forced to testify to place that specific evidence before the jury. We need not decide whether the trial court erred by excluding third-party testimony of these specific acts because, assuming for argument=s sake that this evidence was admissible, appellant cannot demonstrate harm on this record.
We disregard non-constitutional errors that do not affect substantial rights. See Tex. R. App. P. 44.2(b); Ray v. State, 178 S.W.3d 833, 836 (Tex. Crim. App. 2005). We examine the record as a whole and if we are fairly assured that the error did not influence the jury or had but a slight effect, we conclude that the error is harmless. See Ray, 178 S.W.3d at 836; Cruz v. State, 122 S.W.3d 309, 315 (Tex. App.CHouston [1st Dist.] 2003, no pet.).
The weight of the evidence of a defendant=s guilt is a relevant factor in conducting a Rule 44.2(b) harm analysis. Motilla v. State, 78 S.W.3d 352, 360 (Tex. Crim. App. 2002). The character of the alleged error and how it may be considered in connection with other evidence in the case also are relevant. Id. at 359. We may also consider the jury instructions, the State=s theory of the case, and any defensive theories. Id. at 355.
Appellant testified that he had heard that the complainant was Aon the run from Mexico@ and was wanted there for multiple killings, although appellant never specifically testified to hearing that the complainant had killed a police officer. Appellant also testified that he had been told of threats by the complainant to kill him, Diana, Diana=s boyfriend, and Diana=s mother. Appellant relies on Ray for the proposition that he was harmed by being forced to testify in order to bring this evidence before the jury. See Ray, 178 S.W.3d at 836.
Appellant=s reliance on Ray is misplaced. In Ray, the defendant was the front-seat passenger of a car in which police found a bottle containing eight rocks of crack cocaine hidden between the passenger seat and the center console. Id. at 835. The defendant admitted to possessing the drug paraphernalia police found in her purse, but denied possessing the bottle of crack cocaine. Id. The trial court excluded the testimony of an acquaintance of appellant that the driver of the car took one rock of crack from a container similar to the one found by police and gave it to him shortly before the car was stopped. Id. The defendant then was left with only her own self-serving testimony regarding who possessed the drugs. See id.
This case is distinguishable from Ray because, as described above, the jury had before it substantial evidence regarding the complainant=s propensity for violence and appellant=s awareness of that propensity, including third-party testimony that the complainant had committed sexual assault and acts of domestic violence, and had been removed from Diana=s mother=s residence by police. This testimony supported appellant=s testimony regarding the complainant=s violent character and thus Aadded significantly to [appellant=s] defense,@ a key component that was lacking in Ray. See id. at 836.
The concurring opinion in Ray underscores our conclusion by clarifying that the erroneous exclusion of third-party testimony results in harm if it would have been the only or primary evidence in support of an asserted defense; such is not the case on this record. See id. at 837 (Hervey, J., concurring). Further supporting our conclusion that appellant cannot show harm is the fact that he was acquitted of the more serious charges of murder and manslaughter, and instead was convicted of criminally negligent homicide. See Motilla, 78 S.W.3d at 355.
After examining this record in its entirety, we are fairly assured that any error in excluding third-party testimony that appellant had heard that the complainant had threatened him and had killed a police officer or others in Mexico did not influence the jury, or had but a slight effect, and therefore was harmless. See Tex. R. App. P. 44.2(b); Ray, 178 S.W.3d at 836; Cruz, 122 S.W.3d at 315; see also Motilla, 78 S.W.3d at 355, 359-60.
We overrule appellant=s issue regarding exclusion of third-party testimony establishing the complainant=s violent character.
Conclusion
The trial court=s judgment is affirmed.
/s/ William J. Boyce
Justice
Panel consists of Justices Anderson, Guzman and Boyce.
Do Not Publish C Tex. R. App. P. 47.2(b).
1 The State=s brief does not predicate its waiver argument on the delay between appellant=s initial trial objections and his later explanation of those objections. The State concedes in its brief that appellant=s Fifth Amendment contentions on appeal comport with the corresponding objections made during the exchange involving Officer Arnold. The State contends that only appellant=s Fifth Amendment objections need to be addressed because appellant=s counsel made no reference to the Texas Constitution or to article 38.38 when the objections were first lodged, or when appellant=s counsel elaborated on the objections during the noon recess.
2 Appellant=s counsel re-urged his motion for mistrial following this question. The trial court treated counsel=s statement as an objection and stated, AThe objection is overruled.@ Because the trial court treated counsel=s statement as an objection, we do too.
3 Before evidence of a complainant=s prior aggressive acts may be admitted, there first must be some evidence of a violent or aggressive act by the complainant that tends to raise the issue of self-defense and that the specific act may explain. Torres, 71 S.W.3d at 760. We assume without deciding that this predicate was established during the testimony of the State=s witnesses in the State=s case-in-chief. See id. & n.7.
Document Info
Docket Number： 14-08-00176-CR
Filed Date： 6/9/2009
Precedential Status： Precedential
Modified Date： 9/15/2015